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Hearing: 4th September 2009, day 57
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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 Friday, 4th September 2009
commencing at 10.00 am
Day 57
1 Friday, 4th September 2009
2 (10.00 am)
3 MR UNDERWOOD: Morning, sir. May I call David Wood, please?
4 MR DAVID LEONARD WOOD (sworn)
5 Questions from MR UNDERWOOD
6 MR UNDERWOOD: My name is Underwood, as you know. I am
7 counsel for the Inquiry. I have a few questions for you
8 and it may well be there is supplemental questioning
9 later on. Are your full names David Leonard Wood?
10 A. They are indeed, yes.
11 Q. May I ask you to look at the screen and I will call up
12 page [81276]? If we flick quickly through the four
13 pages of that, can you confirm that that's your witness
14 statement?
15 A. It is indeed, yes.
16 Q. Signed as long ago as 26th June 2006. Is that true?
17 A. It is true, yes.
18 Q. Thank you. I want to identify some documents in our
19 electronic bundle that you have referred to in this
20 before we go any further. If we look at paragraph 5
21 here on page [81277], you say:
22 "Having read the papers and considered the issues
23 involved ... Chris Mahaffey met with K and
24 Maynard McBurney ..."
25 Then if we jump down to the final two sentences, you
1
1 say:
2 "I immediately made an appointment to see the chief
3 constable and did so on 13th December. A copy of the
4 action log is now produced and shown to me marked
5 'DLW1'."
6 Can I invite you now to look at page [14867]? Is
7 that the action log?
8 A. It is indeed, yes.
9 Q. Thank you.
10 Then if we look at paragraph 12, which we find on
11 page [81278], there is a reference in the first
12 paragraph there to a review of the whole case. You say:
13 "... I drafted a memorandum dated 13th November 2001
14 setting out and summarising the five different enquiries
15 connected to the death of Robert Hamill."
16 The final sentence of that reads:
17 "A copy of the memorandum is now produced and shown
18 to me marked 'DLW2'."
19 Can I invite you to look at page [14472]? Is that
20 the memo you are talking about there?
21 A. It is. It appears to be, yes.
22 Q. Thank you. Then finally on this topic, can we go back
23 to page [81279]? Paragraph 13. In the first sentence
24 you say:
25 "In November 2003 Chris Mahaffey submitted his
2
1 report regarding the misconduct allegations against
2 Mr McBurney and Mr Irwin."
3 In the final sentence:
4 "A copy of the report is now produced and shown to
5 me marked 'DLW3'."
6 May we look, please, at [26884]? Is that the report
7 you are talking about there?
8 A. It is indeed, yes.
9 Q. Thank you very much. Just a few supplemental questions
10 on your witness statement. At paragraph 10, which we
11 find on page [81278], you tell us that on 2nd March 2001
12 the Ombudsman and you met with the chief constable and
13 raised your concerns over the repeated delays in the
14 police investigation. On 10th April all the conspiracy
15 suspects were arrested and interviewed. You go on to
16 say:
17 "We wanted to use intrusive surveillance techniques
18 at the respective homes and raised this. I then
19 experienced various delays in implementing the proactive
20 strategy and technical surveillance and I believed the
21 RUC were resisting it."
22 You go on in paragraph 11 to say:
23 "This", that's the intrusive surveillance, "was
24 carried out after the arrests in April 2001 but was
25 compromised very quickly and the devices had to be
3
1 removed."
2 Now, Colville Stewart gave evidence yesterday and he
3 told us there was a sharp disagreement between your
4 side, as it were, and his team about two things:
5 firstly, whether intrusive surveillance should be put in
6 before the arrests rather than at the time of the
7 arrests; and, secondly, about the use of it at all,
8 because, as Mr Stewart believed, Mr Atkinson was very
9 alert to the prospect of being bugged, as it were, and
10 he would be on the look-out for these things.
11 Would you like to comment on that?
12 A. Yes. I think the first thing is they never came up with
13 a viable strategy for how to place intrusive
14 surveillance in the property prior to the arrest, so
15 I was never persuaded certainly by any strategy they
16 had. So it was about finding a strategy.
17 Sorry, the second part of your question was?
18 Q. The second part was that this was going to be useless in
19 Atkinson's home anyway, because he was a technophile and
20 also was alert to the prospect of being bugged.
21 A. That was raised at the time and I rejected that at the
22 time. Again, they could never substantiate that, apart
23 from saying he was someone who was interested in
24 technical things.
25 The reality of the matter was he was a reserve
4
1 constable in the Royal Ulster Constabulary whose role is
2 a patrol function. Whilst intrusive surveillance was
3 used in Northern Ireland, it is at the Special Branch
4 end of the anti-terrorist end of the business.
5 I believe I am right in saying they had never used
6 intrusive surveillance operationally for evidential
7 purposes. So even the CID force of that particular
8 force were not conversant with such methodology.
9 I certainly didn't think there was any grounds to
10 suspect that a reserve constable would for a moment
11 dream that that was likely to be a methodology employed
12 against him, and they could never, ever -- no-one could
13 ever substantiate any reason for believing that he may
14 think he would be subjected to that, because it had
15 never been used in another investigation. Why should he
16 think that? He was never, ever an investigator himself
17 anyway.
18 Q. Going back to your witness statement, you talk there
19 about resistance in paragraph 10. You believe that the
20 RUC were resisting the prospect of intrusive
21 surveillance.
22 Did you see anything sinister in that or was that
23 just resistance to, as it were, a new kid on the block
24 coming in and telling them what to do?
25 A. There is a little bit in that. I saw it at the time
5
1 culturally, if I am honest. You know, I think it was
2 about the stomach to do this to their own. There was
3 also, I think, some security issues among some of the
4 senior officers thinking about they live in the
5 community and Atkinson was seen as, you know, part of
6 that community and perhaps part of the Loyalist or the
7 Unionist side of that community, and they were fearful
8 how that would be interpreted by that community.
9 I didn't think these were viable objections from
10 a Police Service, quite frankly. That's how
11 I interpreted it at the time. It was something that was
12 cultural and some aspects of fear about doing this.
13 Q. To be clear, you are not suggesting, are you, that they
14 were protecting one of their own; rather, they were
15 concerned that, by being seen to be using intrusive
16 surveillance on one of their own, they might upset the
17 Loyalist community and other officers?
18 A. That is how I interpreted that. Of course, that will be
19 a matter for this Inquiry to interpret. Yes, I saw it
20 more culturally generally rather than, "We absolutely
21 want to protect this officer".
22 Q. Then if we look at paragraph 13 of your statement at
23 page [81279], we have already briefly looked at this,
24 because this is the paragraph in which you, as it were,
25 incorporate Chris Mahaffey's report. You say in it in
6
1 the second sentence:
2 "That report was critical of Mr McBurney but there
3 was no misconduct outcomes available to him because
4 Mr McBurney had retired in 2001. I reviewed
5 Mr Mahaffey's report and agreed with his conclusions.
6 We didn't approach it on the basis of criminal conduct
7 by Mr McBurney and concluded that there was no evidence
8 or allegation that he had perverted the course of
9 justice; rather he wasn't doing his job very well."
10 Again, I know it is a while ago since you have had
11 to consider it in detail, but was it your impression at
12 the time this was just that, neglect, rather than
13 anything more sinister?
14 A. Yes, it was. It was, as I say, some aspects of cultural
15 difficulties, I think, with confronting what had to be
16 done and, secondly, just absolute neglect and, you know,
17 just a poor investigation. That's how I interpreted it
18 at the time, a neglect of duty, rather than anything
19 worse than that.
20 Q. Can I look at a couple of aspects or rather a couple of
21 time periods? There was a period between 16th May 1997
22 and 9th September 1997 that I would like to ask you
23 about.
24 On 16th May 1997, as far as we can tell the RUC came
25 into possession of the telephone records which showed
7
1 that Tracey Clarke's allegation about the tip-off
2 between Atkinson and Hanvey had perhaps got some
3 substance. Atkinson was not interviewed about that
4 until 9th May 1997. As far as we can tell, nothing was
5 done. At least, there is no record of anything being
6 done to check anything of that. Does that coincide with
7 your conclusion?
8 A. Yes.
9 Q. Let me put this prospect to you: because Tracey Clarke
10 had in her one statement made two separate
11 allegations -- she had made the allegation of murder
12 against the five or so suspects, and, on the other hand,
13 she had made this tip-off allegation -- if Atkinson had
14 been told in May or June about all this, he would have
15 gone back to Hanvey and said, "You idiot. Who have you
16 been talking to?" and Hanvey would have said, "I told
17 Tracey Clarke". Therefore, her evidence in the murder
18 might have been compromised. A reasonable SOI might,
19 for those reasons, have thought, "Let's go quiet on the
20 tip-off allegation until we have got the murder at least
21 better sorted out".
22 What do you think about that?
23 A. No, I don't think that. I think it was potentially
24 quite important to the murder investigation to pursue
25 Reserve Constable Atkinson and, indeed, the wider part
8
1 that he tipped off the man allegedly involved in the
2 murder. I think that's quite central to the murder
3 investigation. At some stage, I think fairly soon
4 after, if I recall anyway, the alleged murderers were
5 arrested in any event.
6 Q. They were arrested on 10th May.
7 A. Yes, and the matter with Atkinson did not have to be
8 dealt with -- I mean, Tracey Clarke's evidence, from my
9 memory, in respect of this part or in respect of
10 Atkinson, not necessarily Hanvey, was hearsay. So they
11 wouldn't necessarily, in dealing with Atkinson, have
12 to -- they could have done that in a way that they
13 didn't actually disclose Tracey Clarke. They could have
14 dealt with it quite quickly without disclosing
15 Tracey Clarke's part, that they had information that --
16 and then they had the telephone records, etc. There
17 would have been significant evidential advantages in
18 doing that fairly swiftly and fairly quickly.
19 Q. What do you think of the --
20 THE CHAIRMAN: Forgive me. I don't think, Mr Wood, you are
21 really dealing with the point which Mr Underwood puts to
22 you. If Atkinson had been asked, however obliquely,
23 about the telephone call, he could have gone then to
24 Hanvey and discovered from Hanvey who it was who knew or
25 could himself have deduced, "Well, this must have come
9
1 in the first place from Hanvey. Who would Hanvey tell?
2 What about Tracey Clarke?"
3 A. Well, of course, that's a possibility. One wouldn't
4 know how many people --
5 THE CHAIRMAN: Is that as high as you put it, a possibility?
6 A. Well, I suppose we don't know how many people were aware
7 of that call, but it might be more than just Hanvey. It
8 might have been other people. I am not sure. It is
9 a possibility but, as I say, the murderers were arrested
10 in any event fairly soon after. I presume they were
11 remanded in custody. I am not sure.
12 THE CHAIRMAN: They were.
13 A. So, you know, I don't think that should have prevented
14 them conducting that part of the inquiry which could
15 have added significant value to the case if it had been
16 productive.
17 MR UNDERWOOD: You are clear, are you, you saw the
18 allegation about the tip-off as intrinsic to the murder
19 investigation?
20 A. Well, certainly important to it, yes.
21 Q. Thank you. As I said, I wanted to look at another
22 period as well. That's the period after October 1997.
23 You may or may not recall --
24 A. Can I just add to the last point, too, I think, which is
25 probably important?
10
1 Q. Please.
2 A. That was never via Mr McBurney or DI Irwin claimed as
3 their reason for -- they never raised that particular
4 point and this particular difficulty in why they didn't
5 pursue that Inquiry immediately. That's not an issue
6 they ever raised.
7 Q. As I said, reminding you of the timescale, the telephone
8 records appear to come in on 16th May, and on
9 9th September, I should have said, 1997 -- I think
10 I said May -- Mr Atkinson was first taxed about this.
11 He was then given a month to find his records and come
12 back with an explanation, which he did in due course in
13 October 1997. That's when what we are calling an alibi
14 came about.
15 After that, there were still no other steps taken,
16 as far as we can ascertain, to try to break that alibi;
17 for example, by putting to Andrea McKee that she could
18 not possibly mean what she was saying or by looking for
19 the taxi log. Again, does that coincide with your
20 conclusions?
21 A. Yes. And there are other things that could have been
22 done too, yes.
23 Q. We know in 2000/2001, all sorts of things were done,
24 which did indeed lead to some evidence about that.
25 A. Yes.
11
1 Q. Can you conceive of any reason why those should not and
2 could not have been done in 1997, when the alibi came
3 up?
4 A. No.
5 MR UNDERWOOD: That's very helpful, Mr Wood. Thank you very
6 much. As I say, others may have more questions.
7 Questions from MR WOLFE
8 MR ADAIR: Sir, just give me one moment.
9 MR WOLFE: Good morning, Mr Wood. My name is Wolfe. I am
10 going to ask you some questions on behalf of the PSNI.
11 A. Good morning. Yes.
12 Q. As I understand it, you took up employment in the
13 Ombudsman's Office when it was an office designate
14 before it became fully operational. Isn't that right?
15 A. Yes, by a short period, yes.
16 Q. In terms of -- it may be stating the obvious -- the
17 Ombudsman's function and role, can you explain to the
18 Inquiry just what its purpose was?
19 A. Yes. The purpose was to restore confidence in the
20 police complaints system, to independently investigate
21 complaints and ultimately to try to improve public
22 confidence in policing in Northern Ireland.
23 Q. That was really its mission statement?
24 A. Yes.
25 Q. There had been hitherto problems in community confidence
12
1 in the policing systems in Northern Ireland. Isn't that
2 correct?
3 A. I think that's fair, and the police complaints system in
4 particular, yes.
5 Q. In terms of a comparison -- maybe you have not thought
6 about it in this way -- with the ICPC, were you night
7 and day organisations by comparison, in your view?
8 A. Very different organisations, yes.
9 Q. In terms of the powers of the Ombudsman enshrined in
10 legislation, its resourcing and staffing, the
11 Ombudsman's Office, by comparison, was very much more
12 tooled up for the purposes of carrying out
13 investigations, for example, and on the other side in
14 terms of supervising investigations that were already
15 ongoing?
16 A. Most certainly, yes.
17 Q. Now, I suppose at an early stage in the life of the
18 organisation you had to sit down and assess which of the
19 cases you were inheriting were of the greatest priority?
20 A. Yes, that's fair. I mean, it was an element of chaos,
21 of course, when you first start an organisation. We had
22 a lot less staff than we should have had at day one.
23 I think there was something like 1,500 cases coming over
24 from ICPC. The days the doors opened, we had a huge
25 volume of complaints, because people held back their
13
1 complaints, because they knew the day the office was
2 going to open. So it was enormously pressurised in the
3 first days and weeks and first few months. So we had to
4 make those decisions, yes.
5 Q. Now, in terms of the Ombudsman's relationships with the
6 RUC at that time, did that involve, in your view,
7 a cultural shift or a requirement for a cultural shift
8 on the part of the RUC?
9 A. It did require a cultural shift, yes.
10 Q. At that time, the chief constable was
11 Sir Ronnie Flanagan, as we know.
12 A. It was indeed, yes.
13 Q. I suppose, almost on a day-to-day basis or on a weekly
14 basis, you would have had dealings with him?
15 A. Yes, on a very frequent basis in the first months of the
16 office, yes.
17 Q. Now, it would appear from the papers and certainly the
18 amount of activity that all of the issues surrounding
19 the Hamill incident, if I can call it that, were
20 regarded as a significant case for the Ombudsman?
21 A. Yes, it was.
22 Q. Would it be going too far to say that in terms of
23 your -- the requirement of the office to rebuild or
24 instil community confidence in the system of policing
25 and police accountability that the Hamill incident or
14
1 the Hamill case was something of a litmus test for your
2 organisation?
3 A. I think we could use different words, but it was
4 an important case, I think, for community confidence.
5 There was, in my belief, and also the Police Ombudsman's
6 belief, significant community concern about the case.
7 So it was important, yes.
8 Q. Certainly looking at the action log, for example, really
9 from very early on in the autumn of 2000 you were
10 conducting meetings, for example, with Mr McGrory and
11 various other people to establish just where the case
12 was?
13 A. Yes, absolutely.
14 Q. Now, some of my colleagues perhaps will ask you about
15 your perception of the role of Mr McBurney, but I think
16 by December of 2000 you had reached the view that you
17 had no confidence in his ability to continue to conduct
18 the investigations --
19 A. That's fair, yes.
20 Q. -- and you reported your concerns to the chief
21 constable.
22 A. I did indeed.
23 Q. He took seriously your concerns?
24 A. Absolutely he did, yes.
25 Q. And almost immediately, he agreed to the replacement of
15
1 Mr McBurney. Isn't that right?
2 A. Yes, he did agree to that immediately and I think within
3 24 hours appointed -- well, we agreed on a new
4 investigator for the Atkinson Inquiry, who we also
5 appointed to be the SIO for the murder, yes.
6 Q. So within one day Mr Stewart was appointed?
7 A. He was indeed, yes.
8 Q. Can one push you and draw some conclusions from what the
9 chief constable agreed? Can it be said that he was
10 taking seriously the Ombudsman's concerns and being
11 proactively cooperative in seeking to address those
12 concerns?
13 A. Yes, absolutely. In respect of that matter, I think
14 I got an appointment with him expeditiously. He made
15 himself available. I went and saw him. I outlined the
16 concerns. He did treat them seriously. He agreed
17 immediately and saw the strength of the argument and we
18 moved Mr McBurney from both inquiries and appointed
19 a new person in 24 hours. So I don't think he could
20 have done any more in respect of that, in fairness to
21 Sir Ronnie.
22 Q. Now, I want to bring you on to the issue you have
23 raised, and others will deal with it on a more specific
24 level perhaps, but with regards to the tactic or the
25 strategy which you developed which Mr Stewart was to
16
1 implement -- and I want to ask you specifically about
2 the question of the decision to place surveillance
3 devices, and I listened to your answer this morning when
4 my learned friend Mr Underwood asked you to clarify what
5 you meant in your statement when you said you believed
6 the RUC were resisting it. I just want to break that
7 down and ensure that I fully understand what you are
8 saying there.
9 Now, when you refer to the RUC, presumably you are
10 referring to specific officers as opposed to the
11 organisation?
12 A. I suppose that's fair comment, but the people I was
13 dealing with who had to implement this were, you know --
14 they were the ones I am saying were resistant. So yes,
15 I suppose it would be unfair to say necessarily the
16 whole organisation were resistant to it.
17 Q. Your dealings were primarily with Mr Stewart. Is that
18 right?
19 A. Well, with Mr Stewart and I think your K witness in this
20 matter and obviously through my SIO Chris Mahaffey too.
21 Q. Yes.
22 A. Again, in fairness to the chief constable, when I saw
23 him about this originally, he has to authorise under
24 RIPA the placement of intrusive surveillance and he did
25 authorise that quite quickly. So by the chief
17
1 constable's actions he was supportive of that,
2 otherwise, presumably, he would not have authorised it.
3 Q. I want to come back to your thinking and your
4 explanation of the issue of resistance in a moment, but
5 just in terms of the chief constable, he signed the RIPA
6 authorisation. Isn't that right?
7 A. Yes, he would have done, yes.
8 Q. I understand there was an issue in terms of obtaining
9 the hardware to carry out this surveillance which you
10 brought to the attention of the chief constable?
11 A. That's correct.
12 Q. And he obtained that for you very quickly?
13 A. Well, delays went over months in reality. I didn't find
14 it very acceptable, because the kit, you know, is
15 available and there are priorities and choices people
16 have to make, but, yes, when I did bring it to his
17 attention, he said he would sort it out.
18 I don't think it was sorted out immediately, but
19 when I brought it to his attention again, I think it was
20 sorted out quite quickly.
21 Q. Now, when you were asked about this question of
22 resistance, you said that at the time you thought it was
23 a cultural matter.
24 A. Uh-huh.
25 Q. You said that it was the stomach to do this to their
18
1 own. There was also, I think, some security issues
2 among some of the senior officers thinking about they
3 live in the community. Atkinson was seen, as you know,
4 as part of that community and perhaps part of the
5 Loyalist or the Unionist side of that community and they
6 were fearful how that would be interpreted by that
7 community.
8 This is obviously an important issue in your
9 description of it. You will understand it might be
10 regarded as fairly significant. So let me attempt to
11 understand what you mean by that.
12 Are you saying, Mr Wood, that this wasn't simply
13 a disagreement over tactics; in other words, a genuine
14 disagreement in terms of when or whether to install
15 surveillance? It went beyond that?
16 A. Yes.
17 Q. Are you saying, as it appears from what I have just read
18 out, that they didn't want to go this far -- that is,
19 the police didn't want to go this far -- because
20 Atkinson was seen as one of their own and part of
21 a Loyalist/Unionist community from which they also came,
22 from which the investigators also came?
23 A. Yes. The reluctance was born by that, I believe, yes.
24 Q. Tell me: presumably you communicated this allegation to
25 those whom you believed were guilty of this resistance?
19
1 A. I did on one occasion to your Witness K, yes.
2 Q. Did you describe it in the terms that you have to the
3 Inquiry this morning?
4 A. Well, I challenged his -- I challenged his attitude
5 towards it and, you know, he -- and during the course of
6 that meeting that's when he said that he had -- it is
7 a long time ago, so forgive me if this statement is not
8 entirely accurate, but I think he said --
9 MR ADAIR: I am sorry to interrupt, sir, but I think that
10 there are matters here that I am concerned are about to
11 come out which I am think we all know should not come
12 out unless we go into a private hearing. It's a very,
13 very sensitive issue.
14 THE CHAIRMAN: Yes. Then I think we will have to go into
15 a private hearing.
16 MR UNDERWOOD: Can I say I know what the concern is.
17 I would apprehend that it is irrelevant to the terms of
18 reference. So I would apprehend it would be better if
19 this question was simply not pursued.
20 THE CHAIRMAN: Now, Mr Wolfe --
21 MR ADAIR: Could I maybe explain to my friend what ...
22 THE CHAIRMAN: Yes.
23 MR ADAIR: I am sorry, I am getting bombarded on both sides
24 here.
25 THE CHAIRMAN: Yes, I see this.
20
1 MR ADAIR: There might be a quick way of resolving this,
2 sir, if you would rise for five minutes. I think if
3 Mr Underwood perhaps spoke to -- well, I have some
4 possible ideas in my mind to try to solve this without
5 any delay.
6 THE CHAIRMAN: Right. Can I say that if, after that, there
7 is a wish either by Mr Wolfe or it may be Mr McGrory to
8 pursue this matter, then we shall have to go into
9 a closed session.
10 MR ADAIR: Yes. There is not by Mr McGrory.
11 THE CHAIRMAN: I see.
12 MR ADAIR: It is one very discrete matter which I think you
13 are aware of.
14 THE CHAIRMAN: We will give you the time.
15 MR ADAIR: Thank you, sir.
16 (10.37 am)
17 (A short break)
18 (10.42 am)
19 MR UNDERWOOD: Can I just explain what has happened?
20 THE CHAIRMAN: Yes.
21 MR UNDERWOOD: There is a fact --
22 SIR JOHN EVANS: We have an absentee.
23 MR McGRORY: Mr Adair did ask me to give some warning when
24 you were returning, I am afraid, but I was taken by
25 surprise myself.
21
1 SIR JOHN EVANS: We can wait.
2 MR UNDERWOOD: The explanation will not surprise him.
3 THE CHAIRMAN: He is here.
4 MR ADAIR: My apologies.
5 MR UNDERWOOD: There is a fact which I think everybody
6 agrees is probably at least immaterial to the terms of
7 reference that might emerge in the course of answers to
8 this sort of line of questions. What we have agreed and
9 I have asked Mr Wood to do is, if Mr Wood feels the need
10 to reveal that fact in the course of one of his answers,
11 first to say to you, "You may want to hear this in
12 closed session". It is not a matter, I would
13 respectfully suggest, of any global significance, but it
14 is particularly significant to a witness yet to come.
15 THE CHAIRMAN: Yes.
16 MR WOLFE: I apologise for getting to my feet the first time
17 all week and opening a can of worms. It will not happen
18 again.
19 Now, Mr Wood, where were we? I was clarifying, or
20 attempting to clarify, badly, what you were attempting
21 to say earlier. Can I put these propositions to you?
22 You had a reasonably close working relationship with
23 Mr Stewart and Witness K over this period of time. Is
24 that right?
25 A. I wouldn't say my relationship was a close working
22
1 relationship with them. I think Chris Mahaffey's would
2 have been.
3 Q. Yes, of course. There is absolutely no suggestion on
4 your part or the Ombudsman's Office's part that they
5 were other than determined to pursue these
6 investigations?
7 A. That's fair, I think, yes.
8 Q. There is no suggestion, for example, that they were
9 other than determined to bring about a situation or
10 bring about evidence whereby consideration could be
11 given to giving Mr Atkinson, for example, before the
12 courts?
13 A. I think they were keen to do that, yes.
14 Q. Again, in terms of any expressed reluctance to use
15 surveillance, you are not saying, for example, that this
16 reluctance, if there be a reluctance -- and I understand
17 there to be some controversy about that -- this is not
18 reflective of any sympathy, for example, for
19 Mr Atkinson?
20 A. In fairness, I did not interpret that, no.
21 Q. Nor indeed are you attempting to suggest that any
22 reluctance with regard to the use of surveillance
23 implied any sympathy with the Loyalist community?
24 A. No, I wouldn't have interpreted that. It was just the
25 reluctance and opposition I think I felt to the strategy
23
1 being agreed.
2 Q. In terms of that reluctance -- and again I hasten to add
3 that I understand there to be a factual controversy
4 about that that Mr Adair may deal with with you -- he
5 represents the officers concerned -- but in terms of
6 what you are saying as grounding that reluctance, you
7 refer to a fear factor, a fear factor in terms of the
8 use of surveillance, and how it might be perceived.
9 A. That's one part of it, yes.
10 Q. Another part of it was the efficacy of surveillance,
11 whether it would work in terms of producing fruitful
12 results?
13 A. Yes, that would be something they would say. As I say,
14 I am not sure I accepted that. It might be easier if
15 I try to explain why I felt there was resistance, as
16 I have put it, and I think that's partly that there
17 wasn't the preparation done, as you would expect to be
18 done, around surveillance on the properties and this
19 type of thing that you would expect to be done before
20 such intrusive surveillance was employed. Why they were
21 not getting on with that I didn't understand.
22 The fact they could not get the kit, I just did not
23 understand that, quite frankly, because there would be
24 emergency situations where you would need kit quickly.
25 Presumably they did that all the time. Yet suddenly,
24
1 they cannot find kit.
2 Whilst they were resistant to the strategy we were
3 pursuing or wishing to pursue, they had no other
4 strategy. They were not coming forward and saying,
5 "This is what we need to be doing." There were terms
6 being used like "sledgehammer to crack a nut" by not
7 only those officers, but others, and which
8 Chris Mahaffey was -- it is that -- it's that overall.
9 There might be more things because it's a long time ago.
10 All I can say is how I felt at the time.
11 Q. Let me raise just a number of discrete issues arising
12 out of that. Firstly, this was a matter where the
13 Ombudsman decided to supervise the investigation. Isn't
14 that right?
15 A. Yes.
16 Q. You could at any point have decided that you would take
17 the investigation back and carry it out yourselves.
18 Isn't that right?
19 A. In theory, but there would have been practical
20 difficulties with that.
21 Q. Yes. Resource difficulties?
22 A. No, no. It is the fact that our powers extended only to
23 investigating police officers. This was a situation
24 where a police officer had allegedly committed offences
25 with members of the public. So we could not take the
25
1 whole inquiry off them. It would have led to a split
2 inquiry. We didn't have the powers of intrusive
3 surveillance. That required the RUC and the chief
4 constable's authority, and them, indeed, to deploy that
5 authority. So it wasn't a practical solution to
6 a disagreement. We had to resolve the disagreement.
7 Q. Now, ultimately, of course, the surveillance was placed?
8 A. Yes.
9 Q. Any real or perceived reluctance, as you understood it,
10 was overcome and the surveillance was placed?
11 A. The surveillance was placed.
12 Q. Now, in your observation of the reluctance one thing
13 caught my attention, and that was, in light of the
14 evidence of Mr Stewart yesterday -- you would not have
15 heard it, I don't think -- his perception was that both
16 you and Mr Mahaffey wanted things done in accordance
17 with a very contracted time-frame; in other words,
18 I think he said, memorably, that you wanted things done
19 yesterday or by tomorrow perhaps.
20 Now, is it fair to say that there is something in
21 that, that you were keeping a firm foot on the
22 accelerator and pushing this forward in a way perhaps
23 where Mr Stewart wasn't comfortable?
24 A. I would certainly agree our timescales in our minds were
25 different. I don't say that we or I wanted it done
26
1 tomorrow, but we were just seeing no progress. The kit
2 is an example of that. So there was disagreements and
3 pressure from us, yes, about accelerating that activity.
4 Q. Of course, you obviously have your interests in having
5 it done quickly, and while the investigating officers,
6 no doubt, would have liked to have proceeded, they would
7 suggest, with all due speed, they have issues and
8 pressures which are not the same issues and pressures
9 which you would have faced.
10 A. I would accept that, yes.
11 Q. Now, just finally, Mr Wood, how long did you remain with
12 the Ombudsman's Office?
13 A. About five and a quarter years.
14 Q. So you saw the organisation develop and become
15 established and left in or about 2005/2006?
16 A. I left in January 2006. So I did indeed, yes.
17 Q. Now, one matter which the Inquiry may wish to consider
18 is in terms of recommendations for the future in terms
19 of learning from the experiences that have arisen
20 arising out of this incident.
21 The Ombudsman's office, am I right in saying, has
22 adopted best practice and is recorded by many as
23 a thoroughly professional and effective organisation for
24 investigating policing issues?
25 A. I think that's probably fair, yes.
27
1 Q. In terms of the mission statement we referred to at the
2 top, do you think the organisation has been effective,
3 certainly when you left in 2006, of course, but by that
4 stage, do you think the organisation had moved in the
5 direction of achieving public confidence in policing?
6 A. Yes, I do. I think the Police Service in
7 Northern Ireland developed considerably over the period
8 I was in Northern Ireland into a, more and more, more
9 professional policing service.
10 I don't claim that's all part of the Police
11 Ombudsman's Office, but I think a valuable contribution
12 was made to that in the recommendations we made, and
13 particularly what we call the Regulation 20 reports,
14 when we analysed and looked at systemic problems, some
15 of them around training, some of them around -- not
16 about disciplining the officers, but how they approached
17 training, how they approached particular situations.
18 And firearms was a particular case in point where we did
19 bring about changes to sometimes the policies, the
20 organisations, sometimes the training regimes and how
21 they applied them.
22 So we had a part in that, but there was also the
23 leadership of the organisation as well, of course, that
24 took that forward over that time.
25 Q. Just finally, while the police service may not always
28
1 agree or like what the Ombudsman's Office has to say,
2 was it your impression by 2006 that, culturally at
3 least, they were receptive to working very closely and
4 cooperatively with the Ombudsman's Office?
5 A. Absolutely I would say so, yes.
6 MR WOLFE: Very well. Thank you.
7 Questions from MR ADAIR
8 MR ADAIR: Mr Wood, I have only really got a few questions
9 for you, because I think you have answered of late
10 a number of the matters I was going to raise with you,
11 but just so I am clear, in case I have misinterpreted
12 what you are saying about Mr Stewart and K, my
13 understanding is -- and is this a fair summary of your
14 thoughts at the time -- that you are satisfied that K
15 and Stewart were determined to try to get Atkinson.
16 I think you have told us that.
17 A. Yes, I think that's fair.
18 Q. You are satisfied that the difference between you was in
19 relation to strategy. We will come to cultural in
20 a minute, but, substantially, the difference between you
21 was strategy?
22 A. Yes. I think the difference between us was that I don't
23 think they were keen or wished to deploy intrusive
24 surveillance.
25 Q. So when you talk about this cultural difference -- by
29
1 the way, when did you arrive in Northern Ireland?
2 A. In September 2000.
3 Q. Had you ever been here before?
4 A. No.
5 Q. What police force were you in before that?
6 A. The Metropolitan Police Service.
7 Q. Was this your first ever involvement with
8 Northern Ireland?
9 A. Not my first ever involvement, but I had not -- I had
10 been to Ireland before, but never been to
11 Northern Ireland.
12 Q. Have you lived round Portadown at all?
13 A. Not at all.
14 Q. Had you any experience whatsoever of policing in
15 Northern Ireland before coming over here?
16 A. Indirectly, and I obviously dealt with officers, the
17 Royal Ulster Constabulary and had been on some training
18 with officers in the past, but I wouldn't say great
19 experience, no.
20 Q. What experience did you have?
21 A. Only with inquiries that might have been done in London
22 in connection with Ireland and that type of thing.
23 Q. Can we take it the answer is virtually none?
24 A. I would accept that, yes.
25 Q. You then arrive over and you get involved, I think even
30
1 before the Ombudsman's Office was officially set up, you
2 came over to get some insight. Is that a fair way of
3 putting it?
4 A. No. The office had been set up. So I had come to lead
5 that.
6 Q. Now, K had already been involved in the investigation
7 when you arrived, had he?
8 A. I think that's right, yes.
9 Q. We know that Mr Stewart was appointed on
10 18th December 2000 --
11 A. Yes.
12 Q. -- on the removal of Detective Chief Inspector McBurney.
13 Am I right in saying that K had already been
14 considering -- before the appointment of Mr Stewart,
15 there had already been consideration given to using
16 intrusive surveillance?
17 A. Not that I can recall.
18 Q. Well, that's -- well, I am suggesting to you there was,
19 but perhaps you don't know. Are you not aware that they
20 had already, as I understand it, considered intrusive
21 surveillance before the Ombudsman's Office became
22 involved?
23 A. I have no memory of that. So I don't think I was aware.
24 Q. Okay. But what is clear then is that the differences
25 between you, and what you have described as their -- any
31
1 resistance and opposition related to the strategy to be
2 deployed, and substantially that relates to the method
3 of deployment of the covert surveillance?
4 A. No. I think the resistance was to using it at all.
5 That was my impression at the time.
6 Q. Well, can I suggest to you, Mr Wood, that was a totally
7 wrong impression. Where did you -- where does it ever
8 appear -- did either of them ever say to you, "I do not
9 want to use this at all"?
10 A. I think I have described why I had that impression.
11 I am not saying I am right or I am wrong. I am telling
12 you about the impression I had, and it was for the
13 reasons I just gave about the lack of preparation to do
14 it, the "sledgehammer to crack a nut" comments, the --
15 Q. Who made that comment?
16 A. I can't recall now. It might not have been -- it wasn't
17 to me directly, it was to my SIO, Chris Mahaffey.
18 I think it is documented somewhere.
19 Q. Did you not tell us a few moments ago that it was the
20 officers -- that it was Mr Stewart? Maybe I am wrong.
21 Did you not tell us it was one of these officers?
22 A. No.
23 Q. So you didn't hear that expression from either
24 Mr Stewart or K?
25 A. No.
32
1 Q. Do you know you have given us the impression, if you
2 didn't state it directly, that that's where it came
3 from?
4 A. I can't recall where it came from, because I think we
5 heard that more than once.
6 Q. Try to think now, Mr Wood, where it came from?
7 A. I think it's documented somewhere. I haven't got the
8 document in front of me. I am not sure it says in the
9 document where it came from, but I won't be able to
10 recall that.
11 I can't recall, but I can just recall the
12 conversation with Chris Mahaffey about those terms being
13 used at the time and I think I documented it.
14 Q. The impression we also get from your memo, any memos
15 that you write, are that it's the officers involved in
16 this investigation, ie Stewart and K, who use this
17 expression, "using a sledgehammer to crack a nut".
18 Now, if it wasn't either of those two officers who
19 said it, did somebody tell you that somebody else had
20 said it or ...?
21 A. Well, I think I've answered the best I can on that.
22 I am not saying who did or didn't say it. I am saying
23 it was said at the time, it was reported to me and
24 I documented it.
25 Q. Who reported it to you?
33
1 A. I'm pretty sure it was Chris Mahaffey.
2 Q. Did he tell you who had said it?
3 A. I can't recall. I can't recall now, but it was members
4 of the investigating team, whether it be the senior
5 investigator or others. He was in daily contact.
6 Q. Can I just say, having had the record checked, you did
7 not say that, so I am wrong about that.
8 THE CHAIRMAN: It may be in the statement somewhere.
9 MR ADAIR: I am not sure, sir. I suggested to you that you
10 said it in evidence. I am wrong about that. Okay?
11 A. Yes. Fine. Thank you.
12 Q. Now, the differences between you which relate to the
13 covert intrusive surveillance is essentially that they
14 wanted to put it in at a time when Atkinson and his
15 family were not in the house, and you wanted to put it
16 in immediately post-arrest. Isn't that right?
17 A. As I say, they never came out with a clear strategy how
18 they would do what they wanted to do, and they didn't --
19 they wanted to do things separately, from memory, but
20 their strategy was not viable in my opinion. They
21 didn't have a clear strategy and that was the
22 differences between us.
23 Q. Well, their strategy, Mr Wood, was to put the intrusive
24 surveillance into the house at a time when it wouldn't
25 have been obvious to anybody that the surveillance
34
1 equipment was being put in the house. Wasn't that their
2 strategy?
3 A. Their strategy was flawed, because they had done no
4 lifestyle surveillance. They had not analysed telephone
5 billing. They didn't understand when -- they had no
6 information or intelligence when the -- the movements of
7 the family or what opportunities there was to do that.
8 So they had not done that basic work, so their strategy
9 was flawed until they had done that.
10 THE CHAIRMAN: Can you just help us, Mr Wood? Leave aside
11 criticisms of their strategy or lack of it. Was the
12 view expressed to you, "We want to put in surveillance
13 equipment before the arrest"?
14 A. Yes, there was a stage, but, as I say, it just didn't
15 have the detail of a strategy --
16 MR ADAIR: They wanted it in at a time when it might not
17 have been patently obvious to Mr Atkinson and everybody
18 else who lived in the area that the surveillance
19 equipment was being put in. That's what they were
20 suggesting?
21 A. Yes, I think. I am not sure I entirely agree with that,
22 but they were saying -- they were saying they wanted to
23 do it in a different way, yes.
24 Q. They made it clear to you, Mr Wood -- do you have the
25 expression in England "the dogs in the street"?
35
1 A. Yes.
2 Q. They made it clear to you that the dogs in the street
3 would know that the surveillance equipment was being put
4 into these houses if it was done immediately
5 post-arrest, didn't they?
6 A. I don't say they put it that clearly. They were not
7 keen on that strategy. They couldn't explain -- as
8 I say, they just didn't have an alternative.
9 Q. They did have an alternative. The alternative was to
10 put it in before any arrests were made at a time when
11 Mr Atkinson and the others might not catch on to it?
12 A. But they hadn't developed that strategy. They didn't
13 know how or when they could do that. It was just
14 expression rather than -- they had not done the work to
15 enable them to do that.
16 Q. You, of course, as you have told us -- I think the words
17 you used were to the effect that you would never have
18 thought for a one moment that Mr Atkinson would suspect
19 that surveillance equipment would be put in his house.
20 That's what you told us.
21 A. Yes.
22 Q. You were totally wrong about that. You blew it,
23 Mr Wood.
24 A. Well, I don't accept that.
25 Q. Well, you were totally wrong. Mr Atkinson and the
36
1 others realised within a matter of hours that their
2 house was being bugged, because of the botched way that
3 you suggested this operation be done?
4 THE CHAIRMAN: That's really two questions in one. Can you
5 take it separately?
6 MR ADAIR: Thank you, sir.
7 Mr Atkinson and the others realised virtually
8 immediately that their houses were being bugged. Isn't
9 that right?
10 A. Yes, I think it was compromised.
11 THE CHAIRMAN: I am not sure what's meant by "compromised".
12 MR ADAIR: Does "compromised" mean they realised
13 immediately?
14 A. No. That they were told.
15 Q. By whom?
16 A. I don't know. It was my belief at the time -- and
17 I think I documented this was the likely outcome -- by
18 someone within -- who was aware within the Royal Ulster
19 Constabulary.
20 Q. That's just speculation. That's just something you are
21 speculating now about, because you know, Mr Wood, that
22 your thoughts were that Mr Atkinson would never catch on
23 to this. He would not be savvy enough to catch on to
24 it. He did catch on to it. He was savvy enough. You
25 are now trying to say it was compromised by somebody
37
1 else, I suggest.
2 A. No, I am not now trying to say that. There was an
3 inquiry into how the leak occurred at the time.
4 Q. Yes.
5 A. So I'm not saying that now. I said that then and I said
6 that as a likelihood actually before it happened. So
7 I was very clear about that, and I believe that to this
8 day. Of course, I can't prove how that happened.
9 Q. No.
10 A. There were various things that happened at the time.
11 There was an inquiry into it. Obviously, it didn't
12 identify fully who had done it, but I think it was
13 generally accepted indeed by members of the RUC at the
14 time that there had been a compromise in the way I have
15 described.
16 Q. I just want to suggest to you, Mr Wood, that you had
17 been here a very short period of time, which is just
18 a fact.
19 A. Correct.
20 Q. I suggest to you that you were warned and warned by
21 Mr Stewart and K that your suggestion as to how this
22 surveillance should be conducted was flawed. You
23 insisted on it happening and it was flawed?
24 A. I don't accept that.
25 Q. I suggest to you also, Mr Wood, the tragic thing is that
38
1 this would have been an opportunity not only to gain
2 evidence potentially against Mr Atkinson, but also
3 possibly in relation to the Hamill murder?
4 A. I agree entirely with that.
5 Q. Because you wanted, I suggest to you, to rush on in, in
6 this what I suggest to you was just a ridiculous
7 fashion, that that was blown?
8 A. Well, I don't accept that at all and I don't think
9 December to something like April was rushing. I think
10 it was -- you know, I think that's a reasonable period
11 of time. Indeed, things are done far more expediently
12 than that lots of circumstances. So I don't accept what
13 you are suggesting to me at all.
14 Q. You also, of course, you have told us, would also have
15 rushed in at the very start and arrested Mr Atkinson and
16 treated him as part of the murder investigation. Isn't
17 that right?
18 A. You are using all these pejorative terms like "rushed
19 in". I think when there was evidence and strong
20 information available that there had been a perversion
21 of the course of justice, yes, I feel there should have
22 been action taken, because obviously he subsequently
23 provided what we termed an alibi and I think, had
24 enquiries been made then, there is every opportunity it
25 could have been completely broken.
39
1 Q. Let's look at what could have been done if Atkinson was
2 arrested, Mr Wood. Say he was arrested on 10th May, the
3 same time as the people who were charged with the
4 murder, do you seriously think that he would, first of
5 all, have admitted it?
6 A. Probably not.
7 Q. Do you seriously think that Mr Hanvey would have
8 admitted it?
9 A. Probably not.
10 Q. We know that at that moment in time we had a statement
11 from Tracey Clarke --
12 A. Yes.
13 Q. -- setting out the allegation.
14 A. Yes.
15 Q. That would have to be put to him even without the name
16 being used.
17 A. Certainly the general allegation would have to be put to
18 him, yes.
19 Q. Well, do you not understand, Mr Wood, that within half
20 an hour in Portadown everybody would know who that
21 person was and that Tracey Clarke's cover would be blown
22 immediately?
23 A. Well, that was not anything that certainly Mr McBurney
24 suggested as a reason for not detaining --
25 Q. You have told us that before, but do you not see that
40
1 that would have happened?
2 A. Well, the same -- I suppose I could fire back the same
3 suggestion in respect of the arrests for the murder and
4 charging people with the murder. I am sure that was
5 quite clear around Portadown whose evidence that was
6 quite quickly in the same way. So inevitably, that
7 witness was going to be uncovered in a way and
8 arrangements would have to be made. So I don't know
9 that this is different from the murder investigation in
10 that regard.
11 Q. They had just received a statement from a critical
12 witness, Tracey Clarke, which implicated these people in
13 this murder.
14 Was it sensible -- I mean, just even now today, what
15 would you do today? Would it be sensible to essentially
16 guarantee that that witness' identity became known
17 straightaway?
18 A. Well, I suspect with the arrest of five people for the
19 murder, the same outcome was there. It is a serious
20 murder investigation.
21 THE CHAIRMAN: Is there not this difference: there had been
22 many witnesses of the murder incident -- whether or not
23 they would come forward was an entirely different
24 matter -- but there had been many witnesses.
25 On the other hand, if you ask about a telephone call
41
1 made to the Hanvey's house and then say, "Well, now, who
2 might be in the know about that?", first, Hanvey, of
3 course, and then if you say, "Well, who would Hanvey
4 talk to about this?", would his girlfriend be an obvious
5 possibility?
6 A. That's a possibility, of course.
7 THE CHAIRMAN: No. You see, I wonder if that distinguishes
8 the route to Tracey Clarke because of the telephone
9 allegation from the route to Tracey Clarke because of
10 witnessing a murder where there were so many witnesses.
11 A. Yes, that distinction is a fair distinction to draw.
12 I suppose Tracey Clarke's evidence would have to be
13 served within the prosecution so there was going to be
14 exposure at some stage.
15 I suppose at the time they would have detained
16 Atkinson, they would have had the itemised billing. So
17 I think what you would be putting to him is a phone call
18 from his house on the itemised billing which would have
19 some opportunity to disguise where it had come from.
20 I am not sure you would necessarily have to. I think
21 there were ways that could be done. It was just
22 a serious allegation into the officer. As I say,
23 Mr McBurney, when he was interviewed about this, that
24 was not the reason he put forward for not doing it.
25 MR ADAIR: I understand that.
42
1 A. Yes.
2 Q. But are you saying, just in conclusion on this point,
3 that even today, if that scenario arose, that you would
4 go out and arrest Atkinson there and then?
5 A. Well, you would do your work before you had done that.
6 You would be thinking about the things that you are
7 saying, I am sure, and thinking how you would disguise
8 what you put to him.
9 Q. Having thought about it, what would you do?
10 A. Detain him.
11 Q. Arrest him?
12 A. Yes.
13 Q. And your witness immediately exposed?
14 A. Well, I would make sure that didn't happen. I would do
15 my best to ensure it didn't happen. The witness is
16 going to be exposed eventually by her evidence in
17 a murder investigation, so it is about timing.
18 MR ADAIR: Okay, Mr Wood. Thank you.
19 THE CHAIRMAN: Yes, Mr McGrory?
20 Questions from MR McGRORY
21 MR McGRORY: Again, I think, Mr Wood, no introductions are
22 needed on this occasion.
23 Mr Wood, can I just ask you what your current
24 position is?
25 A. Yes. I am a strategic director for UK Borders Agency in
43
1 charge of criminality and detention.
2 Q. Did you move directly from your position in the
3 Ombudsman's Office to that post?
4 A. No. There was a post in between when I was the director
5 of policy and process for the criminal justice system of
6 England and Wales within the Office of Criminal Justice
7 Reform.
8 Q. Right. Would you mind just outlining for us, please,
9 because it has not been done so far, and I think it
10 would be of benefit in view of some of the questions
11 that have been asked to you, your experience as
12 a policeman from the beginning?
13 A. That's going back a long time.
14 Q. Without going into too much detail, give us a potted
15 history, please?
16 A. Over 30 years of policing. The vast majority of my
17 policing service was as a detective, either as
18 an investigator or leading teams or departments of
19 detectives. I served on the company fraud department of
20 New Scotland Yard, for a short time on the
21 anti-terrorist squad at New Scotland Yard.
22 Q. Can I stop you there just to slow down for a wee moment?
23 How many years ago did you first join the police?
24 A. In 1974.
25 Q. Then you first worked in what capacity?
44
1 A. As a constable patrolling the streets where everyone
2 starts as a police officer.
3 Q. Was this all within the Metropolitan Police in London?
4 A. Yes, it was. I spent time on the Regional Crime Squad
5 where you work across many force areas. So I spent time
6 with the Regional Crime Squad. Do you want me to carry
7 on?
8 Q. No, I will lead you through it, if I may. I know you
9 are not my witness. I think it will be a bit shorter.
10 Once you left the Regional Crime Squad, where did you go
11 then within the Metropolitan Police?
12 A. That was later on in my service. I served in the
13 International Organised Crime Branch.
14 Q. What rank would you have been at that point?
15 A. A detective inspector at that point.
16 Q. Then where did you go from there?
17 A. I have sort of jumped around a bit. So I was a sergeant
18 on the company fraud department, New Scotland Yard.
19 I became a uniformed inspector for a short while then.
20 Then I became a detective inspector. I worked on a busy
21 south London division. Then I went to the International
22 Organised Crime Branch. Then a short time on a project
23 reviewing evidence in the Metropolitan Police. Then
24 I got promoted to Chief Inspector, went to a busy south
25 London division. Then to the Regional Crime Squad.
45
1 Then I got promoted to superintendent for a while on the
2 Regional Crime Squad running a portion of that, and then
3 I went into leading on intelligence into corruption of
4 officers and those who sought to corrupt them in the
5 Metropolitan Police.
6 Q. Sorry. I will just stop you for a moment. So you have
7 direct experience as a superintendent in the
8 Metropolitan Police of investigating police corruption?
9 A. Yes, and I got promoted then to detective chief
10 superintendent and led a new branch, what was called
11 CIB3, of 300 detectives who were tackling in a proactive
12 way corrupt officers and those who sought to corrupt
13 them.
14 Q. Yes. What position did you hold immediately before you
15 got the post of director of operations in the
16 Ombudsman's Office?
17 A. I was leading on corruption in the Metropolitan Police
18 immediately before.
19 Q. Now, there appears to be some sort of a suggestion here
20 that, because you are some sort of an inexperienced
21 Englishman coming over here, you know, that you should
22 have known better, that you came in with two big feet or
23 something. I want to just deal with that, Mr Wood.
24 You are a man of very high experience obviously when
25 you come to this jurisdiction in policing matters?
46
1 A. Yes, I was an experienced investigator.
2 Q. In particular, in investigating police corruption?
3 A. Yes.
4 Q. You are also an experienced police officer who is
5 familiar with the deployment of intelligence methods, of
6 gathering intelligence?
7 A. Absolutely, and of intrusive surveillance in particular.
8 Q. Indeed, intrusive surveillance. In your experience, the
9 intrusive surveillance was not the preserve of the
10 Special Branch. It was something that was deployed,
11 a method that was deployed by CID investigators?
12 A. Yes, in England and Wales it was, particularly murder
13 and offences like that, it was often used as
14 an evidence-collecting methodology, yes.
15 Q. Indeed, it would often have been used hand-in-hand with
16 some undercover work in terms of sowing seeds with
17 criminals and perhaps planting some undercover police or
18 whatever. The two would have been used in tandem?
19 A. They can be, yes.
20 Q. It was your idea that, in deploying intrusive
21 surveillance here, the whole idea of it was that the
22 timing of it would be alongside an arrest of Atkinson.
23 Isn't that right?
24 A. Yes.
25 Q. In order that that would provoke some talk within
47
1 Atkinson and his circle?
2 A. Yes. Clearly, after he had been detained and went back
3 home, and the others, it would be natural to discuss the
4 issues, yes.
5 Q. So it wasn't a matter of just planting a secret bug
6 sometime in the hope that Atkinson would somehow, out of
7 the blue, start talking about the Hamill incident three
8 years earlier. In your strategy there needed to be some
9 other event which linked the two to make the intrusive
10 surveillance worthwhile.
11 A. That's what I felt at the time, yes.
12 Q. And the obvious link at that time was to make a few
13 arrests, stir the pot a bit, and see what came out of
14 the intrusive surveillance.
15 A. Yes. It is a tactic which certainly I had deployed in
16 the past, and deploying the device upon arrest is
17 a tactic often used.
18 Q. Of course, had you been looking at such a tactic perhaps
19 in the urban conurbation of London, you might have been
20 able to perhaps plant an undercover policeman or
21 something to provoke the conversation, but I am
22 suggesting to you that that was something that might
23 have been much more difficult in the narrow confines of
24 the Loyalist community in Portadown.
25 A. That's probably fair.
48
1 Q. So, of course, when you came over to Northern Ireland
2 then, your first task is to review some of the files
3 that were handed over to you by the ICPC?
4 A. Yes.
5 Q. That, indeed, was the context in which you came across
6 the Hamill file?
7 A. Yes.
8 Q. It was still a live file in existence within the ICPC
9 system?
10 A. It was indeed, yes.
11 Q. On reading that file, what were your impressions of it,
12 of the state of the investigation?
13 A. It took some time to get a grip of it and understand it
14 all and there were a lot of papers to read, but
15 I thought the investigation into Reserve
16 Constable Atkinson was dilatory, poor and it concerned
17 me greatly.
18 Q. Yes. If I could have page [75206], please. Now, this
19 is your memorandum that has caused such a stir of
20 14th March 2001 --
21 A. Yes.
22 Q. -- Mr Wood. If we could perhaps just highlight the top
23 third. The print is very small:
24 "There have been many failures either identified for
25 subject to investigation in respect of the murder of
49
1 Robert Hamill on 27th April 1997. The allegations and
2 failures may be summarised as follows."
3 Do you see that?
4 A. Yes, I do, yes.
5 Q. You then go to set out quite a long litany of failures
6 that you perceived had occurred in the conduct of the
7 police investigation. Isn't that right?
8 A. Well, I think, to be fair, I am saying failures
9 identified or subject to investigation. So I am not
10 saying they are failures that we had found but some of
11 them amounted to allegations, of course.
12 Q. Yes, of course, but amongst them were a number of
13 failures in terms of the manner in which the
14 investigation was conducted, were there not?
15 A. Yes, that's correct.
16 Q. Now, I don't need to go into these individually. You
17 have already made it clear that you felt the conduct of
18 the investigation was poor in a number of respects, but
19 in terms of the situation you found yourself in, you had
20 come over from England, you had been recruited by the
21 newly appointed Ombudsman, Nuala O'Loan. It would be
22 fair to say that most of your investigating staff were
23 also recruited from England?
24 A. I don't think that is fair at the time.
25 Q. Okay.
50
1 A. Certainly at the time I came there had been a worldwide
2 recruitment campaign. We had people coming from
3 different countries, there were some locally recruited
4 people. As I say, they were very short in numbers,
5 because a lot didn't arise who we thought were coming.
6 So we did then -- I did then arrange for some
7 secondments of officers from England and, within weeks,
8 about five arrived, and over time we had to recruit more
9 both locally and from England, yes.
10 Q. Certainly Chris Mahaffey was English?
11 A. He was indeed, yes.
12 Q. But up to now, as we all know, the supervision of the
13 RUC had been conducted by locally-based people through
14 the ICPC?
15 A. Yes, that's correct.
16 Q. It had been a major issue that that whole system was
17 flawed, and you would have been aware of that?
18 A. Yes, I was aware of the views of it, yes.
19 Q. There would have been a perception that, in order for
20 the RUC to be independently and vigorously investigated,
21 there needed to be a fresh approach and perhaps some
22 fresh people?
23 A. Yes, I think greater independence and greater powers in
24 those investigations I think was what Maurice Hayes in
25 his report into the complaints system in
51
1 Northern Ireland had found, yes.
2 Q. Would it be fair to say that was not universally
3 welcomed within the RUC itself?
4 A. I think, to be fair, the RUC were going through dramatic
5 changes at the time and this was one of those dramatic
6 changes, and, yes, it wouldn't have been universally
7 applauded within the force, no.
8 Q. It is only natural in any organisation, whether it be
9 a police force or body of lawyers, or, God forbid, you
10 know, judges or doctors, that if some outside body is
11 introduced and brought in with a mandate to vigorously
12 and independently investigate the work of that
13 organisation, that there is going to be a bit of
14 an attitude of, "Who do these people think they are?"
15 A. There is potential for that, of course, yes.
16 Q. Do you feel you met some of that?
17 A. I met some of it, yes.
18 Q. Even those who are absolutely dedicated to the
19 investigation of crime, the hairs would rise on the back
20 of their neck when some difficult questions are asked or
21 they are being vigorously investigated. People can get
22 defensive?
23 A. Yes, they can, yes.
24 Q. Then, of course, you happened to find a number of
25 failings in the investigation, in your view, and you had
52
1 to declare that?
2 A. Yes.
3 Q. So automatically the people -- the people who are doing
4 the investigation of Reserve Constable Atkinson and the
5 Hamill murder, which is still a live case, are now in
6 a sense being investigated. They are being reviewed.
7 Somebody is having a close look at them. Isn't that the
8 situation you found yourself in?
9 A. Well, I suppose supervised. I would prefer to use the
10 term, yes.
11 Q. Of course, you also had the power to investigate from
12 within --
13 A. Yes.
14 Q. -- the activities of certain police officers -- any
15 police officer?
16 A. Any police officer, yes.
17 Q. Or, indeed, former police officer?
18 A. About a matter whilst they were serving, yes.
19 Q. So in effect, you could have exercised that power not to
20 use the RUC in the investigation of Reserve
21 Constable Atkinson at all, you could have done it
22 completely in-house, couldn't you?
23 A. We could have done, but I think I've explained why that
24 wouldn't have been practical to have done so.
25 Q. No, you took the view, "These people have already done
53
1 some work here and are already investigating. It would
2 be foolish for us to come over from England and think we
3 could do it all alone".
4 A. No, that was not the reason. The allegation against
5 Reserve Constable Atkinson was broader. It was
6 an allegation that the person involved in the murder,
7 the McKees, potentially his wife too, had all conspired
8 to pervert the course of justice.
9 So if we had decided we were going to independently
10 investigate Reserve Constable Atkinson, we could not
11 have had any powers whatsoever to investigate the
12 others. So we would probably have to have worked
13 totally parallel with -- probably in the same room as --
14 the Royal Ulster Constabulary doing that part of the
15 investigation. It would not have worked or been
16 practical. It would have undermined our independence
17 anyway. So it wasn't practical in those circumstances.
18 Q. So you took a practical decision that the best way to
19 address the situation was to use your supervisory powers
20 rather than --
21 A. And our powers of direction, yes.
22 Q. Powers of direct investigation.
23 A. Yes.
24 Q. Can I come to the issue of the alibi and the handling of
25 the alibi by Detective Chief Superintendent McBurney?
54
1 A. Uh-huh.
2 Q. There is a very live issue before the Inquiry, Mr Wood,
3 as to whether or not Detective Chief
4 Superintendent McBurney deliberately scuttled the
5 investigation into the allegation of tipping-off Hanvey
6 or whether or not he was incompetent, or perhaps
7 whether or not he exercised due diligence and things
8 just did not work out. There is a range of
9 possibilities there that this Inquiry has to perhaps
10 take a view on.
11 A. Yes.
12 Q. You, yourself, have already said in evidence that, had
13 you been the investigator and not Detective Chief
14 Superintendent McBurney, you would have taken
15 a different approach; that you would have arrested
16 Atkinson and confronted him with the phone calls?
17 A. Yes, at a much earlier stage, yes.
18 Q. There would perhaps never have been an opportunity for
19 him to have given an alibi at all or certainly not the
20 alibi he did give?
21 A. Well, he have could have given it, but I think you would
22 have investigated it straightaway and hopefully broken
23 it.
24 Q. I suppose one of the ways of possibly breaking it is
25 that he would have had to have given it on hoof, had he
55
1 been confronted with the phone calls. Let me -- I am
2 perhaps jumping a bit ahead of myself. Let's just put
3 the scenario in place.
4 He was interviewed first of all about the phone
5 calls in September 1997.
6 A. I think that's right, yes.
7 Q. Some four months almost after the information had come
8 into the system that there were phone calls on the day
9 that Robert Hamill was attacked. So towards the end of
10 that September interview, it was suggested to him, of
11 course, as you know, that there was some talk about
12 phone calls and would he mind if his telephone records
13 were looked at. You remember that methodology?
14 A. Yes.
15 Q. Then a month later, roughly, he is interviewed again in
16 October and this time he is confronted with his own
17 billing records, and he comes up with the McKee alibi.
18 Now, if we assume that the McKee alibi was a false
19 alibi at the time, then it was concocted between
20 September and October. Would it be your view by
21 mentioning at all the telephone records in the September
22 interview, he was given the opportunity to go and cook
23 up an alibi?
24 A. I suppose that's potentially possible, yes.
25 Q. And that one of the things that would have happened, say
56
1 he had been confronted -- if it had been possible
2 legally to confront him with the telephone records which
3 had been obtained without his knowledge, which is
4 a matter for another day, that if he had been confronted
5 without prior knowledge that the police knew about the
6 telephone contact, then obviously he would have had to
7 give an explanation on the hoof?
8 THE CHAIRMAN: I am not clear about the question. What
9 would the confrontation involve if there is to be no
10 reference to telephone communications?
11 MR McGRORY: I have obviously not explained myself properly,
12 sir.
13 THE CHAIRMAN: Perhaps you can deal with it.
14 MR McGRORY: I will rephrase the question.
15 THE CHAIRMAN: Thank you.
16 MR McGRORY: What I am suggesting should have happened is
17 that Atkinson should have been brought in, either in
18 September or at any other time, and the police should
19 have confronted him with the knowledge of the phone
20 calls between his house and the Hanvey house on the day
21 of 27th April.
22 A. Yes, I would have thought that would be a more sensible
23 strategy certainly, yes.
24 Q. And he, not having known they had them at all, would
25 have been forced to give an explanation?
57
1 A. I suppose he isn't forced to. I suppose he could
2 decline to answer.
3 Q. He would have been asked for an explanation?
4 A. Indeed. Should have been, yes.
5 Q. As an investigator, there was a good possibility he
6 might have, in your belief that he made the phone call,
7 lied on the hoof about who else could have made the
8 phone call?
9 A. Quite possible.
10 Q. It wouldn't have been perhaps as well constructed
11 an alibi as was given in the circumstances that it was
12 given?
13 A. But it certainly would have been an opportunity to
14 investigate it before you released him even, yes.
15 Q. You could have held him there, had he said, "The McKees
16 were visiting me that night". Had he thought of it on
17 the hoof, then, while he was still in custody, the
18 McKees could have been visited?
19 A. Yes.
20 Q. In reality, what happened was that he was given the
21 opportunity to go home to talk to the McKees, to talk to
22 his wife, and then, when he was eventually confronted
23 and asked for an explanation, he knew that the
24 explanation he gave when it was checked up would be
25 verified?
58
1 A. Yes. Clearly, I don't know why Mr McBurney, apart from
2 his own explanation, carried the way he did, but yes,
3 there was the opportunity for him to go back and speak
4 to people, yes.
5 Q. Is that one of the critical flaws you identified in that
6 strategy?
7 A. It was one of the flaws. It was also that, once the
8 alibi had, of course, been raised, there was a whole lot
9 of investigation that could have taken place and broken
10 that, I believe.
11 Q. Yes. Of course, there is nothing that a good copper
12 loves more than a wonky alibi -- isn't that correct --
13 in an investigation, especially when you have precious
14 little else. Would you agree with that?
15 A. That's a possibility. I am sure some detectives would
16 like breaking alibis, yes.
17 Q. Certainly I will suggest to you that a prudent defence
18 lawyer, defence solicitor, when presented with an alibi
19 by a client in the earlier stages of an investigation
20 thinks carefully before presenting it to the police for
21 a good reason. Do you understand what I am talking
22 about?
23 A. I am sure that's matters within your experience, yes.
24 Q. In other words, while there is a legal obligation on you
25 to present the alibi as quickly as possible, not least
59
1 because the earlier it is presented, the better it is,
2 the police will investigate an alibi.
3 A. Yes. You absolutely should do, yes.
4 Q. And are duty-bound to?
5 A. Yes.
6 Q. So in a sense, there may have been some method in Chief
7 Superintendent McBurney's decision to throw out the
8 issue of phone calls in the September interview and ask
9 for the billing records to be produced by Atkinson in
10 the hope that he might indeed produce an alibi which
11 could be investigated. Is that an investigative
12 strategy possibly?
13 A. It doesn't sound a wise one to me, but Mr McBurney gave
14 his sort of explanation when he was interviewed
15 subsequently and it is certainly the method he decided
16 to adopt at the time.
17 Q. Yes. I think his view was, "We will shake the tree
18 a bit here and we will see what comes up", and what has
19 been suggested is, "Because the investigation is
20 hearsay, it comes from Tracey Clarke saying what she was
21 told by Hanvey, it is of limited evidential value to
22 us".
23 A. Yes.
24 Q. So, "We need a bit more here".
25 A. Yes.
60
1 Q. I am actually suggesting to you that was not such
2 an unreasonable view to take at that point.
3 A. Well, I mean, that's the view he took, yes.
4 Q. There were two ways of doing it possibly. They could
5 have done it the way you have suggested. Go straight
6 in, confront him, don't give him an opportunity, see if
7 we can force him into an alibi while we have him in
8 custody and so forth.
9 A. Yes.
10 Q. But if you were going by this other method, then the
11 alibi is produced in October --
12 A. Yes.
13 Q. -- the McKees, and the statements are taken from the
14 McKees. Of course, the police are in a prime position
15 here, because the alibi he does produce is Mrs McKee.
16 A. Uh-huh.
17 Q. Of course, Inspector Irwin, who took the statement from
18 Mrs McKee, knows very well that she is probably not
19 telling the truth, because she mentioned nothing of this
20 when she was in the police station with Tracey Clarke.
21 A. Indeed.
22 Q. So immediately the police are alerted to the fact that
23 this alibi cannot be right. Isn't that the situation?
24 A. I think they must have known it wasn't right, yes.
25 Q. Isn't that a golden opportunity for an investigator to
61
1 crack the alibi?
2 A. That was my criticism, yes.
3 Q. Amongst the things that could have been done immediately
4 would have been to have checked out perhaps where the
5 McKees were on the night they said they made the
6 telephone call?
7 A. Yes, I would think that's quite basic, yes.
8 Q. Check precisely Atkinson's movements, those of him and
9 his wife and the household?
10 A. As far as you can, yes.
11 Q. In fact, there was a second phone call at 4 o'clock
12 later in the day. Mrs Atkinson said she took it. Isn't
13 that correct?
14 A. Yes.
15 Q. The 4 o'clock one. Investigations could have been made
16 at the time as to her movements?
17 A. Yes. I think she normally worked. So, yes.
18 Q. The McKees could have been confronted after some of
19 those investigations perhaps had been done, could they
20 not?
21 A. They could have been, yes.
22 Q. Andrea McKee could have been confronted by the fact that
23 she had already been in the police station with
24 Tracey Clarke and had uttered nothing of this?
25 A. Indeed, yes.
62
1 Q. None of those things were done --
2 A. Yes.
3 Q. -- in 1997?
4 A. And there is other things that could have been done,
5 yes, and weren't done.
6 Q. So do you think then that that was -- I mean, if it was
7 a strategy to shake the tree in terms of mentioning the
8 issue of phone calls and asking Atkinson to produce his
9 records, that if that was intentional to produce -- see
10 what would happen, produce more evidence, that those are
11 things that would and should have been done?
12 A. Yes, absolutely. I mean, I am clear about my view of
13 this investigation. That's why I asked for the removal
14 of Mr McBurney from the investigation fairly soon after
15 I became aware of it.
16 Q. I want just to turn lastly, Mr Wood, to -- sorry. Just
17 before I leave this alibi situation, this point about
18 Tracey Clarke's identity being blown too early, of
19 course, if she was going to be of any value to the
20 prosecution there had to come a point when her identity
21 became known?
22 A. Yes. I think that's my point.
23 Q. And, in fact, at the time that Atkinson was
24 interviewed -- we are in October; the incident is May --
25 at the time Atkinson was interviewed in September and
63
1 October, at that point -- maybe you are not aware of
2 this -- there was still no firm indication that
3 Tracey Clarke was going to withdraw her evidence?
4 A. Yes, I think that's correct, yes.
5 Q. That came towards the end of October, when she was
6 brought to a consultation. I think it was 16th or
7 17th October in the office of the DPP then. She
8 began -- she revealed that she was not too happy about
9 giving evidence, but, of course, once she did that in
10 October, then all was lost. Isn't that correct?
11 A. Yes, I guess so.
12 Q. Had some of those investigative procedures or tactics
13 been put in place that we just spoke about earlier,
14 there might have been something else in place by then?
15 A. Yes, quite possibly.
16 Q. Of course, a preliminary inquiry would have been held
17 within the not too distant future, probably in January
18 or February of 1998, in terms of the murder
19 investigation, had she not withdrawn her evidence, and
20 by then her identity would have been easily detected?
21 A. Yes. I think obviously so, yes.
22 Q. Because the statement would have had to have been served
23 for the committal proceedings within weeks or a short
24 few months after October 1997?
25 A. Yes, indeed.
64
1 Q. Now, can I turn just to this issue? We need to be
2 careful about this issue, because this is the issue
3 which caused the discussion earlier on, but I think
4 I must return to it and I will do so as delicately as
5 possible.
6 There is a passage of your memorandum of 14th March
7 to which I would like to return. It is page [75208].
8 It is about the middle. There is a bullet point that
9 begins:
10 "On 23rd February, DCI K ..."
11 Now:
12 "On 23rd February, DCI K raised further concern on
13 the arrest and proactive strategy against Atkinson. The
14 reasons he gave were:
15 "Atkinson is seen as a local hero by one section of
16 the community."
17 A. Yes.
18 Q. Were you at this meeting or was it related to you?
19 A. I was -- I did have a meeting myself with Witness K and
20 there were other conversations between Chris Mahaffey
21 and him, but I think, following the meetings between
22 Chris Mahaffey and your Witness K, I did have a meeting
23 with him myself. So I think these matters were also
24 brought personally to my attention as well as through
25 Chris Mahaffey.
65
1 Q. Then:
2 "A real risk of compromise with Atkinson finding the
3 equipment. This would result in:
4 "One section of the community being incensed that
5 the police are devoting such resources to this
6 particular inquiry.
7 "The other section incensed as to why nothing was
8 done before, and that these two factors could further
9 place him and his team at risk to attack.
10 "There is a feeling in the local police that
11 Atkinson is being persecuted and such deployment would
12 have severe morale implications for the police."
13 Now, I want to take these separately if you don't
14 mind.
15 A. Uh-huh.
16 Q. I am not interested at all in any individual police
17 officer here. What I am interested in is that it would
18 appear from your memorandum that those involved within
19 the RUC in the investigation of Reserve
20 Constable Atkinson as it was in 2001 were very
21 concerned, firstly, that Atkinson was a hero within one
22 section of the community, and that it would be dangerous
23 to tackle him about this because that section of the
24 community would be incensed. That's what it seems to
25 say here.
66
1 Now, if we can deal with that, is that what you are
2 saying? Your impression was, or it was conveyed to you,
3 "We need to be careful how we deal with this particular
4 individual, because he is a hero within the Unionist
5 community or Loyalist community, and, because he is
6 a hero, it could provoke community tensions"?
7 A. Yes. I didn't interpret -- I think what I am saying
8 here and what I said here at the time was not that they
9 shouldn't investigate him, but that using such tactics
10 as intrusive surveillance would create that sort of
11 feeling, because, as I think I said earlier in my
12 evidence, this would be unique, quite unique in
13 an evidential way in Northern Ireland, and it is getting
14 back to the "sledgehammer to crack a nut" sort of issue
15 really. So that was what was being conveyed, yes.
16 Q. You see, is it the case that while in England intrusive
17 surveillance would be expected to be used by police,
18 CID, investigating police, the unique experience of the
19 RUC up to that time was that this was the preserve of
20 the Special Branch?
21 A. Absolutely, yes.
22 Q. And that for us, as CID officers, to start getting into
23 this territory creates a new situation for us within the
24 community.
25 A. Yes, in respect of this particular inquiry that was what
67
1 was being said in reality, yes.
2 Q. So it wasn't -- there are two elements here. One, there
3 is the identity of this particular individual. Was it
4 the case -- I am not suggesting it was, but I think this
5 memo might suggest it was and we need to get to the
6 bottom of it. Was it the case that, because it was
7 Atkinson, and because of his position in the community
8 and his standing in the community, if he were seen to be
9 vigorously investigated for this, it could cause the
10 police trouble?
11 A. Yes, certainly in terms of using the intrusive
12 surveillance, yes.
13 Q. But it was only in the context of the intrusive
14 surveillance?
15 A. That's what I think I am saying here, yes.
16 Q. So, in other words, the view was, "Hold on a minute
17 here. If we are seen to use intrusive surveillance,
18 then, because we don't normally do that, we are going to
19 damage relations with the community or that particular
20 community"?
21 A. Yes. I think that's one view of what I am saying here.
22 Yes, that's fairly correct, and what I am saying here is
23 what was conveyed to me, of course, not ...
24 Q. What I'm wondering is, would there have been another way
25 around it? What I am suggesting to you then happened is
68
1 that there is clearly a disagreement between yourselves
2 and Colville Stewart and K about how to go about this.
3 One of the concerns which has been shown up is --
4 leaving aside the risk of compromise, which I will come
5 to in a moment, but one of the concerns which has been
6 thrown up is, "We are CID. We don't do this. If we
7 start to be seen planting bugs, this is a prominent
8 member of the Protestant community, Loyalist community,
9 this is going to cause community tensions". Some
10 consideration should have been given at this point to,
11 "Should somebody else do it?"
12 A. I don't really think there was that option. I have
13 expressed the difficulties of us doing that sort of
14 investigation ourselves. We didn't have the powers in
15 law to deploy intrusive surveillance and couldn't have
16 done it. I mean, you need the resources and capability
17 to do it. We didn't have either, apart from not having
18 the power in law. So certainly we could not do it.
19 There are other agencies who could deploy intrusive
20 surveillance, but not who would be happy at that time,
21 I suspect, to do so in an evidential way.
22 THE CHAIRMAN: When you say "someone else", do you mean
23 someone outside the RUC?
24 MR McGRORY: No. Maybe revert to the Special Branch or
25 something?
69
1 A. Sorry. Yes. It could have, provided they were --
2 I think there would have been an issue about
3 Special Branch deploying these devices to be used in
4 an evidential way, but yes, if the chief constable had
5 decided that he was going to direct his Special Branch
6 resources to do this, yes, they could have done it.
7 Q. You see, because what we have here is a very significant
8 shift in policing in Northern Ireland being brought into
9 focus at this time, because it is correct that the
10 Special Branch extensively used electronic, and, indeed,
11 undercover surveillance, but only for the purpose of
12 intelligence-gathering. Isn't that correct?
13 A. Yes, that's correct.
14 Q. And that the RIPA powers which had come into existence
15 to allow surveillance to be used in court for evidential
16 purposes had never been deployed, to your knowledge, in
17 Northern Ireland until you asked for them to be in the
18 Hamill case. Is that correct?
19 A. That's correct, yes.
20 Q. Do you feel, Mr Wood, being as honest as you can, with
21 hindsight, that maybe because of that situation things
22 fell between two stools here, that maybe should
23 everybody included -- not just yourselves and the RUC,
24 but should there have been a step back to say, "This has
25 never been done before. We need to consider very
70
1 carefully how we go about it"?
2 A. You could take that view, but this seemed to be
3 potentially the most productive way to take this
4 forward. This would be a very difficult case to land by
5 then, because of the passage of time and the inability
6 to do the investigations that could have been done some
7 time before.
8 As they had, as an organisation, deployed these type
9 of devices regularly, albeit in an intelligence way --
10 and the people, of course, who put the devices in would
11 not be the detective force, it would be other people who
12 were probably quite used to it. So it seemed it me at
13 the time it should be something they should be capable
14 of doing.
15 Q. Of course, you felt you had no option at this point
16 because of the failures previously. Isn't that right?
17 A. Well, this seemed worthy of -- to explore. It seemed
18 like a real opportunity to secure some evidence, and
19 I think the comments that have been made in this room,
20 it could have also produced evidence in relation to the
21 murder as well as the conspiracy to pervert the course
22 of justice.
23 Q. Of course, what you were trying to do was reinvigorate
24 an investigation which was by now three plus years old.
25 A. Yes, it had gone quite stale, yes.
71
1 THE CHAIRMAN: Of course, for this purpose, it wouldn't
2 matter when the surveillance equipment was installed,
3 provided, if it was done on arrest, it was done quickly
4 on arrest. If it was in place before arrest, you would
5 still hope to receive the fruits of it once the arrest
6 had been made.
7 A. If it could have been deployed before, yes, indeed.
8 MR McGRORY: Now, there is another aspect of this memo
9 I want to draw to your attention. It is the line at the
10 bottom of that section that's already highlighted:
11 "There is a feeling in the local police that
12 Atkinson is being persecuted and such deployment would
13 have severe morale implications for the police."
14 Now that's potentially a very serious line I am
15 suggesting to you, Mr Wood:
16 "There is a feeling in the local police that
17 Atkinson is being persecuted ..."
18 Was it conveyed to you by the RUC investigators at
19 the time, "Look, we have problems here because there is
20 a feeling in our organisation that we are persecuting
21 this man"?
22 A. I think "within the organisation" might be too broad.
23 I think probably it was conveyed to me -- I think
24 I probably record it fairly accurately -- among the
25 local police, local officers in that area. That's my
72
1 memory of that.
2 Q. You see, that line suggests, I put it to you, that there
3 was resistance within the RUC in investigating Atkinson
4 by use of these methods because of the effect on morale
5 within the police?
6 A. Locally, yes.
7 Q. Yes. Anywhere. Locally.
8 A. Locally, yes. You know, I have been clear. I have
9 believed there was resistance to this methodology, yes.
10 Q. When you talk about a lack of appetite, is that one of
11 the things you mean?
12 A. Yes.
13 Q. Do you feel that it was that lack of appetite and that
14 concern about chasing one of their own and how it would
15 affect the police and the community that poisoned this
16 entire investigation?
17 A. I think there are several issues here, different issues
18 perhaps. I felt that Witness K and, indeed,
19 Colville Stewart at one level were quite determined to
20 bring Atkinson to justice if they could. Indeed
21 Witness K had raised with us real concerns about the
22 previous investigation before his time. So he was --
23 you know, he was -- because he felt it had not been done
24 properly. So I think there was at one level a desire to
25 take this forward, and it was entirely the methodology
73
1 of using intrusive surveillance that was being resisted
2 by them. So, yes. So I didn't feel -- I can only go by
3 my feelings and what I believed at the time -- I didn't
4 believe from Witness K, or indeed Colville Stewart, that
5 they individually and personally, you know, wanted to do
6 anything other than bring Atkinson to justice. They
7 just felt that the -- whether it be the "sledgehammer to
8 crack a nut", whatever terminology you want to use,
9 particularly Witness K, his concerns about how this
10 could be perceived locally and the issues I raised here.
11 So they were brought -- they were the concerns he
12 raised.
13 Q. In other words, however genuine and however dedicated
14 these senior police officers within the RUC with whom
15 you were working in this case were, they were hindered
16 and held back in the deployment of these methods which
17 you felt were the appropriate methods because of their
18 concerns for the effect they would have within the
19 police force.
20 A. That was part of it, and it is that cultural -- the
21 other things I mentioned earlier, yes.
22 THE CHAIRMAN: That does mean once it becomes known; after
23 the surveillance equipment has been installed, once it
24 becomes known that that has happened, then a feeling
25 that there would be an effect upon the -- an adverse
74
1 effect upon the morale of local police officers?
2 A. Yes, that's correct and I think he is also saying the
3 team he was working with, who would have known
4 contemporaneously that this was going to happen, were
5 concerned about it too. So I think it is the two
6 things, but certainly yes, the effect locally when it
7 became known.
8 THE CHAIRMAN: Just pause there, please. Just a moment.
9 Yes.
10 MR McGRORY: Indeed, the people with whom you were working,
11 and I mean K and Colville Stewart at that level, they
12 had their own concerns about a possible tip-off, about
13 Atkinson finding out within the force somehow or
14 another.
15 A. I can't recall that. I certainly had enormous concerns
16 at the time that this would be compromised. I can't
17 recall that being conveyed. I think, as I say,
18 I suppose you can infer from the fact that the concern
19 that there was locally could have ended up in
20 a compromise. I think that's something I alluded to in
21 this memorandum.
22 Q. Indeed, there was quite a -- the RUC undertook
23 an investigation into possible compromise --
24 A. Yes, they did.
25 Q. -- led by Detective Inspector xxxxx. Isn't that correct?
75
1 A. That's correct, yes.
2 Q. So they, themselves, had their suspicions?
3 A. Yes. My memory is that they believed, as I believed,
4 that there was a compromise from within that
5 organisation, yes.
6 Q. That was their belief as to how Atkinson knew?
7 A. Yes.
8 Q. Not that the dogs on the street knew because there was
9 a big fuss the day of the arrest?
10 A. Not at all.
11 MR McGRORY: Thank you.
12 MR ADAIR: Sir, I wonder might I mention just before -- you
13 may think that the witness should be asked this
14 question -- I am not going to ask it, but if you think
15 it is relevant. A lot of the questions that this
16 witness was asked in relation to the interview of
17 Atkinson were based on the premise that the phone
18 records were available as evidence -- the phone records
19 obtained in May could be used as evidence and put to
20 a suspect during the course of interview, whereas, in
21 fact, we know from the evidence to date that that
22 evidence that those records were given confidentially
23 because of the risk to the servers' lives, and the
24 police did not put that evidence to suspects because of
25 that agreement with the servers. Virtually, the
76
1 entirety of the cross-examination in relation to this
2 aspect was based on the premise that they could put it
3 to the witness.
4 THE CHAIRMAN: Yes.
5 MR ADAIR: I am wondering, is this witness aware that at
6 that time --
7 THE CHAIRMAN: I will ask him.
8 MR McGRORY: Sorry, can I just -- Mr Adair's submission is
9 slightly inaccurate, if I may so, in that it is not the
10 evidential position that they were not available as
11 evidence at the time.
12 It is my recollection, without looking at this
13 again, that the evidential position is that in the form
14 that they were given on 16th May it was for that
15 purpose, but that there was another method by which it
16 could easily have been turned into material of
17 evidential value and that it was not necessary to ask
18 Atkinson to personally produce them.
19 That is the difference here; that if Chief
20 Superintendent McBurney had wished, he could have turned
21 that information into evidential material to be put to
22 the witness.
23 THE CHAIRMAN: Your comments about the use of the telephone
24 records is based upon the premise that the police had
25 them in a form in which they could use them as evidence.
77
1 A. Yes. I don't know --
2 THE CHAIRMAN: It remains to be seen what the other evidence
3 does --
4 A. Yes. It is quite easy and normal to be able to secure
5 itemised billing for use in evidence. It is in most
6 court cases involving serious crimes.
7 THE CHAIRMAN: We have heard things were a little different
8 in Northern Ireland because of the risk to the
9 servers --
10 MR ADAIR: In England.
11 THE CHAIRMAN: -- if they were seen to provide this kind of
12 information.
13 A. It is fair to say I am assuming that the itemised
14 billing was in the evidential format, yes.
15 MR UNDERWOOD: DCI K can deal with this in due course. He
16 did, in fact, turn them into evidence.
17 MR McGRORY: I have to say I don't think things were that
18 different in Northern Ireland than in England.
19 THE CHAIRMAN: DCI K is going to deal with it, so we will
20 wait. Obviously what Mr Wood is on the premise that
21 they were usable.
22 A. Yes.
23 REV. BARONESS KATHLEEN RICHARDSON: May I just clarify one
24 matter? I don't know who I am asking this question of.
25 The thing that Mr Atkinson was regarded as a local hero,
78
1 earlier I think he was suspected by both communities
2 because of his activities at Drumcree. I mean, can this
3 be clarified?
4 THE CHAIRMAN: And at the tunnel.
5 REV. BARONESS KATHLEEN RICHARDSON: Yes.
6 MR UNDERWOOD: I think Mr Wood can deal with what he was
7 told about.
8 A. I think I can only say what I was told. I was told by
9 Witness K that he was a local hero. I have no
10 independent knowledge of his standing in the community
11 apart from what I was told at the time.
12 Questions from MS DINSMORE
13 MS DINSMORE: Good afternoon. Unlike Mr McGrory, you do
14 require an introduction to me. My name is
15 Margaret Ann Dinsmore. I appear on behalf of Eleanor
16 and Robbie Atkinson. I should say the Baroness has
17 stolen my thunder somewhat in relation to the very real
18 question which she asks, and I fully appreciate that
19 an understanding of Mr Atkinson is perhaps not something
20 you have any knowledge of. Isn't that correct?
21 A. That's correct, yes.
22 Q. Therefore, when you had said today aspects about the
23 issues, part of that community and part of the Loyalist
24 or Unionist community, that is a perception that you
25 knew nothing of?
79
1 A. No. It is just what I was told, yes.
2 Q. If I tell you today that this Inquiry has before it the
3 evidence which our very learned Chairman has very
4 properly brought to your attention, that, in fact,
5 Mr Atkinson was the subject of a great deal of attack
6 and intimidation from the Loyalist community -- in fact,
7 this Inquiry knows that his house was shot at by
8 Loyalists, that his house was attacked, that such was
9 the feeling in both sides of the community that his home
10 required to be armoured. Did you know any of this?
11 A. I did not know any of that at all. I find it surprising
12 with what Witness K told me. I am not saying that's
13 wrong at all, because I have no knowledge of it.
14 Q. It has never been suggested otherwise than it was
15 Loyalist gunmen who had attacked his home.
16 A. I am not challenging that.
17 Q. In fact, were you aware that the Police Service actually
18 asked him for his own safety to move home, because he
19 lives in an area -- I take it you explained to Mr Adair
20 you have never been to Portadown. You know not of
21 Portadown. I am not saying you have never been to
22 Portadown, but you don't know anything. You have
23 obviously been to look at the scene, I would have
24 thought, but you don't know anything really about the
25 communities within Portadown?
80
1 A. That's not quite correct. After I arrived in
2 Northern Ireland, I got to know quite a lot about the
3 communities there and elsewhere, yes.
4 Q. You know [address redacted] where Mr Atkinson lives is
5 a Protestant area --
6 A. Yes.
7 Q. -- and such was the intimidation upon him by the
8 Loyalist grouping that the Police Service offered him
9 a home in [address redacted].
10 THE CHAIRMAN: Do you know that?
11 A. I do not know that.
12 MS DINSMORE: All of this -- and I don't mean to labour
13 matters -- I am now putting to you, is there, in fact,
14 a whole wealth of knowledge which you were not privy to
15 which might colour your memo in relation to the
16 perception that Mr Atkinson was considered as a local
17 hero by one particular community?
18 A. It only would have coloured it to the extent -- because
19 all I was recording was what someone had said to me.
20 THE CHAIRMAN: It wasn't your perception.
21 A. It wasn't my perception.
22 MS DINSMORE: It was at that time. Now when you know -- and
23 I am not going to waste the Inquiry's time by going into
24 colouring in that picture, but now that you know all of
25 that, do you realise that that perception may have been
81
1 inaccurate? If you had been told the full story, would
2 your perception be the same?
3 A. I would then challenge why I was being told that by
4 Witness K.
5 Q. Absolutely. Thank you. The other aspect then relates
6 to the morale issue within the police. I don't want to
7 appear completely simplistic, but it is a victim of my
8 gender, but am I right in thinking that when you say the
9 concerns to the morale of the police, from the evidence
10 you have given today, was that really along the basis
11 that this is something new, now, all of a sudden, you
12 are doing it on a policeman and you are not doing it on
13 anybody else at the moment?
14 Is that a summing-up of it? If you are going to do
15 that, they are going to say, "Is there going to be
16 a different law for us than for everyone else?"
17 A. That's part of it. I think it was a bit about the
18 individual Atkinson being conveyed to me about that
19 person, being conveyed to me, rightly or wrongly, that
20 he is a local hero and a part of that community, and it
21 would be viewed that -- and all the publicity probably
22 about the Hamill Inquiry at the time, that there was,
23 you know, enormous resources going into it and all this
24 methodology and tackling their own, sort of thing,
25 would --
82
1 Q. But if we could just look actually at the memo, because
2 that aspect, you have three bullet points. The local
3 hero is the first bullet point. We have explored that
4 now.
5 I think you would agree with me that you would have
6 some measure of concern relating to such perception as
7 that if you knew the whole facts. That's a specific
8 bullet point which we have dealt with.
9 A. Yes.
10 Q. Then the sentence I am now dealing with and which
11 Mr McGrory also dealt with, it is not a bullet point and
12 it is not related to one of the other three. It is
13 a general comment:
14 "There is a feeling in the local police that
15 Atkinson is being persecuted and such deployment," ie
16 the deployment of covert surveillance, "would have
17 severe morale implications for the police", ie that is
18 the deployment of covert surveillance on a policeman
19 when we are not doing it on other people would have
20 severe morale implications?
21 A. That's one interpretation, yes.
22 MS DINSMORE: Yes. Thank you.
23 Questions from MR O'CONNOR
24 MR O'CONNOR: Mr Wood, I appear for DI Irwin. He is one of
25 the officers I appear for. He was the subject, along
83
1 with Mr McBurney, of the misconduct investigation of
2 November -- with the report of November 2003.
3 A. Yes.
4 Q. How long did it take to produce that report? When was
5 it started up to November 2003?
6 A. I can't recall now.
7 Q. Roughly.
8 A. I said I don't know. You are asking how long it took
9 to --
10 Q. Yes. Was it two years, one year, six months, a month?
11 A. I can't recall. I can't remember when our last activity
12 finished, which is when the report would sort of be
13 written. So I don't know. I expect Mr Mahaffey --
14 Q. Put it this way: was it a thorough investigation?
15 A. Yes.
16 Q. You were the head of that investigation as such?
17 A. No. Mr Mahaffey was the head of the investigation. He
18 reported to me.
19 Q. He reported to you. I think at the start of your
20 evidence you said that you agreed entirely with his
21 report.
22 A. Yes.
23 Q. That's all of his report?
24 A. Yes.
25 Q. Then as far as the report in November 2003 into
84
1 misconduct goes, it completely exonerated DI Irwin from
2 any misconduct.
3 A. Yes. I think that's right. It certainly did not
4 recommend any misconduct proceedings to him. It raised
5 concern about some of the things he had done, but my
6 memory is that it was under the guidance, supervision
7 and direction of DCS McBurney, who was a strong
8 character, and, accordingly, he shouldn't be held to
9 account for that.
10 Q. I have chosen my words carefully. The phrase I put to
11 you was that it completely exonerated him from any
12 misconduct. I am putting that to you on the basis that
13 anything that was questioned about DI Irwin's conduct
14 was not misconduct.
15 A. Not in the disciplinary sense, no.
16 Q. It wasn't misconduct. There were some questions that he
17 may have kept better written records -- this is the
18 conclusions --
19 A. Yes.
20 Q. -- and that was it.
21 A. Yes. I mean, we were concerned about his dealing of
22 Andrea McKee, but, as I have explained, he did it under
23 the direction of, we accepted, DCS McBurney. We had
24 concerned concerns about that, but not misconduct. So
25 I think we are saying the same thing.
85
1 Q. But your concerns about that and Mr Mahaffey's concerns
2 about that were completely laid to rest, and that can be
3 seen in the misconduct recommendations. Isn't that
4 right?
5 A. But no misconduct is recommended. That's correct.
6 Q. Your concerns were laid to rest. There was no concern.
7 The only concern was that he may have kept some better
8 records?
9 A. We had concerns about his dealings with Andrea McKee,
10 but accepted -- but were not prepared -- I did not feel
11 it right to seek disciplinary action against him,
12 because he did that under the guidance of Mr McBurney.
13 THE CHAIRMAN: In other words, the blame for it really
14 rested on Mr McBurney and Irwin was doing as he was told
15 by his superior?
16 A. Doing what he was told. We were concerned about what he
17 had done, but he was told to do it.
18 MR O'CONNOR: If the Inquiry would indulge me, if I can go
19 to the recommendations very briefly, page [26924],
20 please. The Inquiry will make its own findings
21 obviously, but these were the recommendations you agree
22 entirely with that Chris Mahaffey, the SIO, made?
23 A. Yes.
24 Q. The relevant ones in relation to Mr McBurney begin at
25 paragraph 15.02, if that could be highlighted. I think
86
1 there are six paragraphs in total out of the
2 recommendations that relate to Mr McBurney:
3 "In relation to DI Irwin, it is accepted that he
4 found himself placed in a very difficult position,
5 particularly after the departure of his immediate
6 line manager DCI P39. During interview, it is clear
7 that he at least understood the perception within the
8 community that 'local police were investigating local
9 police'. The evidence indicates that he made every
10 effort to bring this to the attention of both his
11 supervisors and the ICPC."
12 A. Yes.
13 Q. Do you accept that?
14 A. Yes, yes.
15 Q. If we could move on to the next paragraph, 15.03,
16 [26925], and, really, if we could highlight 15.03 down
17 to 15.07 and bring it up as large as possible:
18 "Furthermore, DI Irwin's primary concern was to
19 gather evidence from potential key witnesses against
20 those responsible for the murder of Robert Hamill.
21 The strategy designed by DCS McBurney and carried
22 out by DI Irwin was foolhardy to say the least. It
23 involved the recording of lies, without challenge and
24 without any recorded policy decision. These were
25 persons reasonably suspected of criminal offences but
87
1 not dealt with as such. The actions were capable of
2 malign interpretation and should not have been taken.
3 Given the acceptance of responsibility for this by
4 DCS McBurney when interviewed in retirement by
5 investigators of the Police Ombudsman, DI Irwin cannot
6 be held accountable for these actions."
7 Okay?
8 A. Yes.
9 Q. "Despite this, DI Irwin remained supportive to his
10 supervising officer and carried on with what was asked
11 of him without comment or question.
12 "DI Irwin, by his own admission, deeply regrets not
13 keeping a more comprehensive written record of both the
14 instruction he was given, or of the action he
15 subsequently took. Despite the woeful example set by
16 DCS McBurney, who maintained no written record of any
17 policy decision, this is the one area to which the
18 officer is open to criticism."
19 If I could pause there and say again to you that
20 your concerns were all laid to rest apart from that one
21 thing. Is that right?
22 A. I think I have answered the best I can. 15.04 deals
23 with it really. We were concerned about what he did.
24 If you are asking me were any disciplinary actions
25 dispelled, absolutely right, and that's correct.
88
1 Q. "As a supervisor, DI Irwin should have made a far more
2 comprehensive written account of, at the very least, his
3 own actions. This he has failed to do.
4 "There is little doubt that DI Irwin has learned
5 a valuable lesson. He has apparently recently
6 successfully completed PSNI senior investigator
7 training, one of the core themes being the need for
8 supervisors to maintain a comprehensive and accountable
9 record of all decisions taken."
10 A. Yes.
11 Q. Can I pause and ask you: would you know or do you
12 remember that DI Irwin has never accepted he did not
13 keep a good written account. Do you know that or do you
14 have an answer to that?
15 A. I can't answer that. That's not in my memory. You may
16 or may not be right.
17 Q. Just finally [26926], please. Just the last paragraph.
18 This says "15.08". It should read "15.10".
19 A. Yes, I see that.
20 Q. This again is Chris Mahaffey's recommendations that you
21 completely accept:
22 "Finally, I have reviewed all material in relation
23 to the handling of both Timothy Jameson and
24 Andrea McKee. There is no evidence of any impropriety
25 on the part of either DC Honeyford or DI Irwin during
89
1 their dealings with the witnesses named above."
2 A. Yes.
3 Q. Do you accept that in terms this report, the misconduct
4 report from Chris Mahaffey, apart from keeping written
5 records completely exonerates DI Irwin from any
6 misconduct?
7 A. Yes, in a disciplinary sense, yes, I do.
8 MR O'CONNOR: Thank you.
9 Further questions from MR UNDERWOOD
10 MR UNDERWOOD: Just one matter arising out of that. Were
11 you still considering in those days disciplinary matters
12 in relation to a burden of proof -- a standard of proof
13 of beyond reasonable doubt?
14 A. Yes, it was.
15 MR UNDERWOOD: Thank you, Mr Wood. Unless there is anything
16 else, I have no further questions.
17 Questions from THE PANEL
18 THE CHAIRMAN: There are one or two matters.
19 You told us more than once what Mr McBurney didn't
20 say by way of explanation. What explanation did he give
21 for the delay as you saw it in progressing the
22 investigations so far as they concerned Atkinson?
23 A. I would probably need to read his interview again to be
24 absolutely accurate with you, and I think it is a matter
25 of record, but I think it was -- he just felt that it
90
1 would all be exposed eventually and that the McKees
2 would separate and that he would -- there would be
3 a flaw in their alibi and it would all break eventually.
4 He had no clear strategy about how that would happen,
5 just a divine hope it would, I think. So he didn't have
6 any ...
7 THE CHAIRMAN: I think it was perceived, whether rightly or
8 wrongly, that the relationship between Mr and Mrs McKee
9 was a difficult one. They had separated, and there was
10 an explanation, as in fact materialised, that the
11 breakdown would be complete?
12 A. Yes. He did say that, and, of course, he said that
13 after they had indeed separated, and Andrea McKee was
14 seen and accepted the alibi was false.
15 THE CHAIRMAN: Yes.
16 A. But that was his explanation of why he was doing that.
17 THE CHAIRMAN: Yes. What considerations did you give to the
18 potential effect, if there should be any, on
19 Tracey Clarke's safety if Atkinson had been asked as
20 early as May about the tipping-off allegation?
21 A. Well, I think that would have been something that would
22 have to be considered at the time, and when I say it
23 should be put to him at the earliest opportunity,
24 I don't mean necessarily the day after they got the bill
25 in, but far earlier than it probably was, and certainly
91
1 all in one go and then to follow the investigation
2 through.
3 It was put to him subsequently in the year, and it
4 probably could have been put to him a bit earlier, but
5 even in September, had they approached the whole -- put
6 the whole matter to Mr Atkinson, followed then with
7 enquiries into any alibi he gave, I think then there
8 could have potentially been a breakthrough far earlier
9 in the inquiries. I think that's the point.
10 THE CHAIRMAN: That doesn't seem to be the dealing with the
11 question of the safety of Tracey Clarke. You see, we
12 have been told that attempts were made to move
13 Tracey Clarke to another area and get different work for
14 her. Those came to nothing. Do you regard
15 Tracey Clarke as having been in the position that, were
16 her identity to be known as the person who provided
17 information, and she was not in a place of safety, her
18 own security would be gravely threatened?
19 A. That's possible, and that would have been something the
20 RUC would have had to have carried out a risk and threat
21 assessment about her safety before they undertook any
22 activity and they would have had to have confronted that
23 in respect, of course, of the murder which might have
24 been around witness protection for her, a whole range of
25 issues, but they are something which they should have
92
1 been actively considering in respect of the murder in
2 any event, and, yes, you would make those considerations
3 before you did anything which might expose her. Clearly
4 you would make arrangements to make sure she was safe.
5 THE CHAIRMAN: So, in short, before any step was taken by
6 might lead to Tracey Clarke's identity being discovered,
7 there should have been in place in the sense of ready to
8 be put into effect straightaway adequate protection?
9 A. Yes, there should. Whatever the risk and threat
10 assessment identified as required, yes.
11 THE CHAIRMAN: You see, it may be thought that the risk was
12 of death without any detailed assessment because of the
13 nature of Portadown society.
14 A. Well, there could have been a detailed -- I mean, the
15 RUC were very experienced in detailed risk and threat
16 assessments of individuals in that community, and,
17 indeed, many others. So that's something they actually
18 had full time people dealing with. So they could have
19 and should have done, and may have done -- I am not
20 sure -- conducted a full risk and threat assessment in
21 respect of her being a witness to the murder.
22 THE CHAIRMAN: Was McBurney, do you think, in a position to
23 make that assessment for himself?
24 A. He would have been in a position to ask for it to be
25 done. There are expert people who do it.
93
1 THE CHAIRMAN: No, but was he in a position to have made the
2 assessment himself, even if there were other people who
3 could be asked to do it?
4 A. I don't think he should have done. I think he should --
5 THE CHAIRMAN: I am not asking whether he should or should
6 not have done. I am asking you whether you think he was
7 himself, from his knowledge, in a position to make the
8 assessment.
9 A. Yes, if he had access to all the indices which he may
10 have been able to access.
11 THE CHAIRMAN: Yes. Now, was there a problem about
12 admissible evidence of the conspiracy to pervert the
13 course of justice?
14 A. Yes. There was not -- the only, I think, admissible
15 evidence -- and there has been conjecture about this --
16 would have been the fact that the phone call was made
17 from Atkinson's house to Hanvey's house.
18 THE CHAIRMAN: I think that may be insufficient.
19 A. Well, it would be insufficient -- well, insufficient in
20 terms of charges, not insufficient in terms of making
21 an arrest.
22 THE CHAIRMAN: No, but I am speaking in terms of to make out
23 a case.
24 A. Oh, absolutely. I agree entirely.
25 THE CHAIRMAN: How would you suggest that that essential
94
1 piece of evidence might have been obtained?
2 A. Well, through interview and admissions, through -- which
3 I am not suggesting necessarily would have happened, but
4 you don't know unless you ask the question. There are
5 many criminal cases which are founded on such
6 admissions.
7 THE CHAIRMAN: Of course.
8 A. Secondly, to investigate what he claimed -- who he
9 claimed made the phone call. Obviously -- what
10 transpired was he said there were other people at his
11 house made the call. His duty record was apparently
12 altered to try to show he was at work. So there was all
13 the work that would be done to try to break the alibi
14 down. That may or may not take you further towards --
15 THE CHAIRMAN: You see, the position seems to me to be this.
16 Let's assume you can show the alibi was a falsehood,
17 that it was indeed Atkinson himself who made the phone
18 call. The problem then is, is it not, to show that that
19 phone call had to do with obstructing the course of
20 justice? In other words, the content of the phone call.
21 A. I agree with that, but what you would have had -- quite
22 frankly, if you had broken the alibi and shown they were
23 all lying, you would have had another conspiracy to
24 pervert the course of justice around the investigation
25 into Atkinson. The mere fact they all lied to police
95
1 and said, "We were at the house", when they weren't,
2 which was obstructing the police investigation is
3 a conspiracy to pervert the course of justice, in my
4 view.
5 THE CHAIRMAN: Yes. I am not sure that was the view of
6 counsel who advised. If we just focus for the moment on
7 getting evidence of the content of the phone call.
8 A. Uh-huh.
9 THE CHAIRMAN: You would be reliant there upon getting
10 an admission?
11 A. Absolutely, yes.
12 THE CHAIRMAN: That would really have to come either from
13 Atkinson or from Allister Hanvey?
14 A. Absolutely, yes.
15 THE CHAIRMAN: Without much prospect in either case?
16 A. Yes, but it's --
17 REV. BARONESS KATHLEEN RICHARDSON: A search would be
18 better.
19 A. There are several aspects to this. Of course, in
20 criminal terms in respect of that phone call, I think it
21 would become a wider conspiracy thereafter. You would
22 need one of them to say so, but certainly then it would
23 have followed a misconduct investigation in respect of
24 why was he at the scene of the murder, then phoning one
25 of the people allegedly involved, you know.
96
1 So there would be other aspects to it, but, yes,
2 most certainly in respect of the content of that phone
3 call, it would be extremely difficult to establish the
4 contents of it.
5 THE CHAIRMAN: Yes. Now, if surveillance equipment was
6 installed, whenever it is done, what sort of vehicular
7 traffic, if any, is there going to be to the house, and
8 pedestrian traffic to the house, where it is to be
9 installed?
10 A. We don't know that, because the surveillance was not
11 done on the property, but clearly you have the
12 opportunity, I suppose, following arrest, that there
13 would be a meeting in one or other of the houses and
14 a discussion about what they are going to say, how they
15 are going to approach this. I suppose they are the
16 opportunities we were hoping to exploit.
17 THE CHAIRMAN: Well, you see, Mr Stewart told us yesterday
18 they would have needed the attendance of perhaps three
19 vehicles?
20 A. I am sorry.
21 SIR JOHN EVANS: You are missing the point.
22 A. I am missing the point.
23 SIR JOHN EVANS: The point the Chairman is asking you is:
24 what facilities and resources would be required for the
25 installation?
97
1 THE CHAIRMAN: At the premises, or in the street.
2 MR WOLFE: Sir, in terms of the methodologies -- sorry for
3 interrupting this discussion -- obviously there is
4 a sensitivity around that. I would ask that to be taken
5 on board in terms of how the answer is given to all of
6 this.
7 THE CHAIRMAN: Yes. In 1997.
8 A. No, I don't accept that. I have been at the scene of
9 insertions of surveillance equipment and it would be
10 probably two people with a holdall bag is all that's
11 required.
12 THE CHAIRMAN: Who could go on foot?
13 A. Well, you would drop them. In theory, yes. They could
14 go on foot and be dropped there.
15 THE CHAIRMAN: You don't have to take them into the street
16 in a vehicle?
17 A. Not at all.
18 THE CHAIRMAN: Yes. Thank you.
19 MR UNDERWOOD: I have no further questions. Thank you,
20 Mr Wood.
21 THE CHAIRMAN: Thank you.
22 A. Thank you very much.
23 (The witness withdrew)
24 MR UNDERWOOD: Sir, we have one more witness today who
25 I understand needs a little time before she gives her
98
1 evidence.
2 THE CHAIRMAN: We will break off now until 1.45 pm.
3 (12.40 pm)
4 (The luncheon adjournment)
5 (1.45 pm)
6 MR UNDERWOOD: Patricia Murphy, please.
7 MS PATRICIA MURPHY (sworn)
8 Questions from MR UNDERWOOD
9 MR UNDERWOOD: Good afternoon.
10 A. Afternoon.
11 Q. My name is Underwood. I think you have been in the
12 chamber listening to proceedings this morning, haven't
13 you?
14 A. Yes.
15 Q. So you know how it goes. I am Counsel to the Inquiry
16 and I have first go, then some other people may ask some
17 questions after that.
18 Can you tell us your full names, please?
19 A. Patricia Murphy.
20 Q. Thank you. We have a statement from you. If I can call
21 it up on screen, I hope it is at [81875]. Again if, as
22 you saw happen this morning, we keep our eyes on the
23 screen and flick through the seven pages of this, can
24 you confirm that that is your statement?
25 A. Yes, that's my statement.
99
1 Q. Are the contents of it true?
2 A. Yes, it's true.
3 Q. Thank you. I want to ask you to look at paragraph 13,
4 if I may, on page [81878]. You tell us there:
5 "On 27th October 2003, I travelled to Wales with DC
6 [blank] to accompany Andrea McKee to court in
7 Northern Ireland. My job was to bring Andrea to court,
8 look after her and make sure she got home safely. I had
9 looked after witnesses in the past. I do not know what
10 contact telephone numbers Andrea had but she did not
11 have one for me. This was the first time I had met
12 Andrea."
13 Then go down to paragraph 14:
14 "During the journey to Craigavon Court, Andrea McKee
15 appeared to be a friendly girl who was easy to get on
16 with. She did not appear to be nervous. The case was
17 adjourned without her giving evidence, and on the return
18 journey Andrea was no different way home and did not
19 give any indication that she would not give evidence in
20 the future."
21 That turned out to be a day trip. Was it always
22 anticipated that she would only be over for a day, or
23 can't you recall?
24 A. I can't recall.
25 Q. Okay. Then if we move down to paragraph 15, you say:
100
1 "The next contact I had ... was on Friday,
2 19th December 2003 ..."
3 I am going to paraphrase. That was to deal with
4 travel arrangements for her attendance at court on
5 Monday.
6 Now, again, can you help about whether that was
7 anticipated to be a day trip?
8 A. I can't recall.
9 Q. We have your notebook entries about that which deal with
10 the cancellation of the travel arrangements in due
11 course. Would that help you to remind yourself?
12 A. It may do, if ...
13 Q. Let's have a look, shall we? It is at page [74234].
14 Sorry [74236] is probably a better page to deal with the
15 cancellations. Taking it from the top, at 11.30 you
16 received a phone call from Mr K, as we are calling him:
17 "... who instructed me to cancel all travel
18 arrangements re the case.
19 "Telephoned Avis.
20 "Cancelled care hire for 21st and 22nd.
21 "Telephoned Winstanley Arms Hotel. Cancelled stay,
22 21st.
23 "Telephoned Radisson SAS Manchester Airport.
24 "Cancelled stay 22nd."
25 Then you cancelled some flights. Does that give you
101
1 any help about whether you were going to go and stay in
2 a hotel in Wales, perhaps, then pick up --
3 A. Yes, it looks as if it was arranged that we would take
4 her back on the 22nd stay on the 22nd night and then
5 come back the next day.
6 Q. So she would only have a day trip --
7 A. She would have a day trip.
8 Q. -- and you, of course, had rather more complicated
9 arrangements?
10 A. Yes.
11 Q. As far as you were concerned, on the 23rd she would be
12 in Wales?
13 A. Yes.
14 Q. While we are in your notebook, can we go back to
15 page [74234]? You have dealt in your statement with the
16 telephone call that you had with Andrea McKee on the
17 21st, and again, to paraphrase, you were told that she
18 had rung in to talk about the illness of her child and
19 you were asked to talk to her?
20 A. That's correct, Yes.
21 Q. So you had this call. Can you help us with how quickly
22 after the discussion you would have made your notes
23 about this?
24 A. Well, they are pretty detailed notes, so I would imagine
25 I made them pretty soon after the telephone call.
102
1 Q. Certainly while they were fresh in your mind?
2 A. Yes.
3 Q. Thank you. If we pick up from where it says "10.30" on
4 the left-hand side right down to the bottom of the page:
5 "Telephoned Andrea on her mobile", and it gives
6 a number, "and ascertained that her son has mumps and
7 ochtitis (swelling of the testicles - complication of
8 mumps) and a raised temperature. (There is a fear that
9 he may have a fit with this high temperature)."
10 Can I just ask you if you can help us about whether
11 that was a fear that she was, as it were, passing on,
12 that was expressed to her by a doctor or a fear that
13 she, as a trainee nurse and mother, had of her own?
14 A. All I can say is she told me they were afraid of him
15 fitting, but I don't know if it was her fear or the
16 doctor's fear.
17 Q. Okay. Then:
18 "Andrea explained that this illness started two
19 weeks ago with an ear infection and, since then, he has
20 seen the doctor twice at the surgery and once at home.
21 He is to see the doctor again tomorrow morning. He is
22 currently on medication - amoxycillin and Calpol. The
23 doctor involved is Dr [blank] Strathmore surgery,
24 Chester Road, Wrexham. When asked if there was anything
25 we could do to help", if we go over the page [74235],
103
1 "Andrea said 'No, not at the moment'. Her child was
2 sick and she was not prepared to leave him with anyone.
3 Andrea was very apologetic but she said she couldn't
4 attend court with a child so sick. Asked if she could
5 attend on Tuesday, the 23rd, she said definitely no.
6 Asked about next Monday and Tuesday, said she didn't
7 know but felt that she would have to say no, as she
8 didn't know how much better he would be and she would
9 not leave him if he was ill. Asked about future dates",
10 is that?
11 A. Yes.
12 Q. "... said she goes back to college at the beginning of
13 January and, if possible, would like to get this over
14 and done with before the workload at college became too
15 much, ie first couple of weeks in January. She said
16 an ideal time would be half-term in February, 13th-23rd.
17 Again stressed how sorry she was for mucking things up.
18 Told her I would be in touch re future arrangements."
19 Now, if we go back to your witness statement,
20 page [81879], the last few lines of paragraph 18.
21 I pick that up three lines from the bottom of that
22 paragraph:
23 "My overall impression of Andrea after this
24 conversation was not that she did not want to give
25 evidence, but that she did not feel able to attend the
104
1 hearing because her son was sick."
2 At that stage then, you believed this account, did
3 you?
4 A. Absolutely, yes.
5 Q. You had spent a day with her before this?
6 A. Yes.
7 Q. The day you had spent with her had involved her
8 attending an abortive hearing at which she was due to
9 give evidence. Is that right?
10 A. That's correct, yes.
11 Q. If we look then at paragraph 19, you say:
12 "I attended Craigavon court at 9.00 am on Monday,
13 22nd December 2003 where I spoke with a representative
14 of the DPP. I recorded the events of that day in my
15 notebook at page 74236."
16 Perhaps we can go back to [74236] to pick that up.
17 If we start from 9.45, the entry towards the bottom,
18 again, can you help us how quickly you would have made
19 these notes after the events that they record?
20 A. Straight after, sir.
21 Q. Thank you:
22 "0945. Telephoned Strathmore surgery, Wrexham."
23 More details:
24 "... and spoke to receptionist", we have blanked the
25 name out, "and explained the fact that the court
105
1 required notification of the fact that [the son] was
2 diagnosed with mumps and ochtitis. [Blank] stated that
3 [blank]'s doctor was off until Wednesday but there were
4 two other doctors at the practice", and they are named.
5 "She said that she would get one of them to fax me
6 a report ASAP.
7 "10.45. Again rang Strathmore surgery and spoke to
8 Andrea. She stated that neither of those two doctors
9 would get involved by committing themselves to paper.
10 She stated that Dr [blank] would be back on Wednesday if
11 it was okay with LA", is that?
12 A. Yes. I think it is "with Andrea".
13 Q. Ah, so need her consent. Then:
14 "Reported this to Christine Smyth, DPP, who related
15 this to defence.
16 "Medical certificate to be produced to defence
17 before 02.01.04. AD/CJ to contact police in Wrexham to
18 arrange same."
19 [74237].
20 Unpicking that then, we see you make the first call
21 at 9.45. Not much happens. You ring again at 10.45 and
22 you are fended off.
23 A. Yes.
24 Q. You go back to the, as it turns out, junior counsel,
25 Miss Smyth, who was prosecuting on behalf of the DPP,
106
1 relay that to her, and the outcome is that a medical
2 certificate is to be produced to the defence --
3 A. That's correct, yes.
4 Q. -- by 2nd January.
5 Were you party to any discussions between the
6 prosecution and the defence?
7 A. No, sir.
8 Q. Were you aware that there was anything raised other than
9 a desire to get this made the subject of a certificate?
10 A. No, I wasn't.
11 Q. Were you told this was a disbelieved version of events?
12 A. No.
13 Q. So is this fair: that, at the end of that, as far as you
14 were concerned, it was more or less a clerical matter
15 for a local policeman to go and get a medical
16 certificate from the missing doctor confirming these
17 matters?
18 A. Yes, that would be correct.
19 Q. We know that the adjournment was to 8th March, but that
20 a date was also set of 2nd January 2004 for the
21 production of the certificate, as you said. Was there
22 any question of Andrea attending on 2nd January?
23 A. Not as far as I'm aware.
24 Q. Then if I take you back to your statement at
25 page [81880], at paragraphs 23 and 24, at 23 you say:
107
1 "On 2nd March 2004, I travelled to Wales with DC
2 [blank] and collected Andrea McKee for a consultation
3 with counsel Mr Simpson QC and Ivor Morrison of the DPP.
4 I recorded the details in my notebook at page 74240."
5 Then if you go down to 24:
6 "We then went to the consultation at the DPP
7 offices. During the consultation I made notes."
8 You typed them up. We can see where they are from
9 the references there. We know that at that consultation
10 Andrea was asked about an attendance or non-attendance
11 at a place called Pendine Park out-of-hours over the
12 weekend of 20th and 21st?
13 A. Yes.
14 Q. We also know that counsel was told that officers would
15 be present and that if counsel wanted to ask any
16 questions of officers, he could do. Did you know that?
17 A. No, I don't remember.
18 Q. By this stage, you had spent the day at the abortive
19 hearing with Andrea. You had had at least a couple of
20 telephone conversations. Is that right?
21 A. Yes.
22 Q. And, of course, you travelled to Wales on this occasion
23 and got her again and brought her over for the
24 consultation. So were you fairly familiar with her by
25 then?
108
1 A. Yes, yes.
2 Q. Had you, at any stage, discussed the merits of the
3 evidence she was giving?
4 A. No, sir.
5 Q. So had you discussed with her the child's illness any
6 further than we have seen in the notes here?
7 A. I can't recall, but it may have been in general
8 conversation just how he was now, or ...
9 Q. Had you changed your view by this point about whether,
10 on 21st and 22nd December, her child was ill and that
11 was the reason she didn't come?
12 A. No, sir.
13 Q. Did anybody ask your opinion?
14 A. I can't recall that they did.
15 MR UNDERWOOD: Thank you very much.
16 MR McGRORY: I have no questions, sir.
17 MR ADAIR: I have no questions.
18 THE CHAIRMAN: Yes, Mr Mallon?
19 Questions from MR MALLON
20 MR MALLON: I appear on behalf of Mr and Mrs Atkinson. Were
21 you present at the court when the adjournment
22 application was made?
23 A. I believe I was, yes.
24 Q. Do you remember that the magistrate sitting was
25 Mr McKibbin?
109
1 A. No.
2 Q. You don't remember the magistrate. Did you know who it
3 was or can you remember who it was?
4 A. I have no idea who -- did.
5 Q. Just a magistrate, as far as you were concerned?
6 A. Yes.
7 Q. Do you remember there were a large number of counsel
8 present for both the Hanveys and the Atkinsons?
9 A. No, I don't remember that.
10 Q. You don't remember that. Do you remember the
11 application being made for the adjournment?
12 A. No, sir.
13 Q. And yet you were present in the court?
14 A. Yes, sir.
15 Q. Would you know if anything was said other than a medical
16 certificate to be produced?
17 A. No.
18 Q. Did you take any note at the time of what was going on?
19 A. In the court?
20 Q. Yes.
21 A. No.
22 Q. Would it be true to say that other matters could have
23 been mentioned that you did not remember in relation to
24 this medical certificate?
25 A. I don't remember what was mentioned in the court.
110
1 Q. I have to suggest to you that the medical certificate
2 was asked to confirm and verify that the child was as
3 ill as had been presented to the court; that is
4 temperature, possibility of fitting, swollen testicles
5 as a result of mumps and that she could not be expected
6 to leave the child in that condition. Do you remember
7 any of that being said --
8 A. No, sir.
9 Q. -- and the defence taking the view, if the child was
10 that ill, an adjournment would not be opposed, but if
11 the child proved not to be as ill as the mother said,
12 then that matter would be raised?
13 A. I don't recall what was said in the court.
14 MR MALLON: Thank you.
15 Questions from MR DALY
16 MR DALY: Just in relation to Andrea McKee, Ms Murphy, is it
17 fair to say in relation to your evidence that you
18 communicated with Ms McKee over a fairly lengthy period
19 of time on several occasions?
20 A. Yes, that's correct.
21 Q. Was there any difficulty in getting in touch with her,
22 in making calls to her or in receiving calls from her?
23 A. No difficulties at all.
24 Q. She made herself available, if you like, to you?
25 A. Yes, she did.
111
1 Q. And she also did that in person on a number of occasions
2 when required?
3 A. Yes, she did.
4 Q. Now she attended the court, you have said, in
5 October 2003. Wasn't that some 17 months after her
6 sentence in relation to her own case at Craigavon?
7 A. I am not sure when.
8 Q. You are not sure. If I suggest to you that her own
9 case, she was sentenced in May 2002, you wouldn't
10 disagree with that, would you?
11 A. No, sir.
12 Q. Effectively you personally in your dealings with her had
13 no difficulty with her?
14 A. No difficulty.
15 Q. Is it fair to say that you really were liaison officer
16 to her, and with her you would have had a reasonably
17 intimate knowledge of her?
18 A. I had spoken to her on several occasions and had general
19 conversations and I had no difficulties with her.
20 Q. Was there anybody else, any of your colleagues, who
21 would have had a closer relationship with her or got to
22 know her better that you are aware of?
23 A. No, not that I am aware of.
24 MR DALY: Thank you.
25
112
1 Further questions from MR UNDERWOOD
2 MR UNDERWOOD: Who took the responsibility for doing what
3 had to be done for satisfying the conditions of the
4 adjournment afterwards? Was that DCI K?
5 A. I am not sure. I don't know.
6 MR UNDERWOOD: All right. Thank you very much.
7 THE CHAIRMAN: Thank you very much, Ms Murphy.
8 MR UNDERWOOD: Thank you for coming.
9 (The witness withdrew)
10 MR UNDERWOOD: That concludes the oral evidence for today,
11 and, of course, there is as much of Mr McBurney's tape
12 as you see fit to listen to.
13 THE CHAIRMAN: Very well.
14 MR UNDERWOOD: I am being asked for an indication of what
15 sort of time you propose to sit to today.
16 THE CHAIRMAN: Well, we have three hours and 50 minutes of
17 tape left altogether.
18 MR UNDERWOOD: Yes.
19 THE CHAIRMAN: About how long do you think the oral evidence
20 will take on Monday afternoon?
21 MR UNDERWOOD: I would be surprised if it took more than
22 half an hour.
23 THE CHAIRMAN: Well, we will listen to an hour and three
24 quarters to two hours today.
25 MR UNDERWOOD: Thank you very much. I don't know how
113
1 quickly we can get that up. Quickly I am being told.
2 THE CHAIRMAN: We are not likely to need the stenographers
3 for anything else today, are we?
4 MR UNDERWOOD: I assume that's right. Perhaps they can be
5 left to decide what it is they need to be involved with,
6 but certainly there will not be any further live
7 evidence or submissions.
8 THE CHAIRMAN: As far as I am concerned then, you are free
9 to go. We don't need a shorthand note of the
10 adjournment.
11 (Recorded interview of Maynard McBurney continued to be
12 played)
13 (4.15 pm)
14 (The hearing adjourned until 2.00 pm
15 on Monday, 7th September 2009)
16
17 --ooOoo--
18
19
20
21
22
23
24
25
114
1 I N D E X
2
3
MR DAVID LEONARD WOOD (sworn) .................... 1
4 Questions from MR UNDERWOOD ............... 1
Questions from MR WOLFE ................... 12
5 Questions from MR ADAIR ................... 29
Questions from MR McGRORY ................. 43
6 Questions from MS DINSMORE ................ 79
Questions from MR O'CONNOR ................ 83
7 Further questions from MR UNDERWOOD ....... 90
Questions from THE PANEL .................. 90
8
MS PATRICIA MURPHY (sworn) ....................... 99
9 Questions from MR UNDERWOOD ............... 99
Questions from MR MALLON .................. 109
10 Questions from MR DALY .................... 111
Further questions from MR UNDERWOOD ....... 113
11
(Recorded interview of Maynard ................... 114
12 McBurney continued to be
played)
13
14
15
16
17
18
19
20
21
22
23
24
25
115
