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Hearing: 18th September 2009, day 66
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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, 18th September 2009
commencing at 10.00 am
Day 66
1 Friday, 18th September 2009
2 (10.00 am)
3 MR UNDERWOOD: Morning, sir. Mr McGinty, please.
4 MR KEVIN CHARLES PATRICK McGINTY (sworn)
5 Questions from MR UNDERWOOD
6 MR UNDERWOOD: Morning, Mr McGinty.
7 A. Morning, Mr Underwood.
8 Q. Are you Kevin Charles Patrick McGinty?
9 A. I am.
10 Q. May we look on screen at what I hope is your witness
11 statement at page [81955]?
12 A. It is showing a map at the moment.
13 Q. It will come up, I hope. If you wouldn't mind keeping
14 your eyes on this while we just flick briefly through
15 the content of it.
16 A. Yes.
17 Q. Is that your witness statement?
18 A. It is.
19 Q. Are the contents true?
20 A. They are.
21 Q. Thank you. Can I ask you to look at paragraphs 18, 19
22 and 20, which we find on page [81961], I think?
23 A. I have it.
24 Q. I am just going to read it, if for no other purpose, for
25 the sake of the record:
1
1 "When the case was adjourned on 22nd December 2003
2 it was done so on the basis of the information
3 Andrea McKee had given to DC Murphy about her son being
4 ill and her not being able to leave him to travel. It
5 had been reported that the child had an ear infection,
6 mumps, swollen testes and was at risk of fitting.
7 I have been shown two witness statements by Dr [blank],
8 a GP at Strathmore medical practice in Wrexham, dated
9 24th December 2003 and 30th December 2003. In my view,
10 whilst these statements indicate that the child was
11 indeed unwell with an ear infection and the possibility
12 of mumps, they do not support the degree of illness
13 claimed by Ms McKee. Specifically, the first statement
14 records that the doctor saw the child on the day
15 Ms McKee was to attend court (22nd December). Whilst
16 the doctor confirmed an ear infection in both ears there
17 is no mention of the other serious complications put
18 forward by Ms McKee."
19 Just to clarify, I don't think you had those
20 statements in March 2004, did you?
21 A. No, I don't think so.
22 Q. "19. Given that what Ms McKee had reported was an ear
23 infection, mumps, swollen testes and the risk of
24 fitting, and this had been passed on to the court,
25 neither the court nor the defence, in my view, could
2
1 have been satisfied with the adequacy of these
2 statements. It was inevitable that the prosecution was
3 required to seek further evidence to support the account
4 she had given for her reason not to attend. By making
5 the claim she did, the issue became, not whether her
6 child was ill, but whether she had been truthful in her
7 explanation for her failure to attend court."
8 Again, because you didn't have the statements in
9 March 2004, there is a degree of, if I may say so,
10 after-the-event commentary here. Is that fair?
11 A. In terms of the medical evidence, yes. I think I had
12 been told what it was, but I didn't have the statements.
13 Q. No. I will come back to precisely what you were and
14 weren't told in a bit, if I may. I am just making it
15 clear here that -- am I being fair by suggesting to
16 a degree here you are offering an opinion on the
17 materials you have now seen?
18 A. Yes.
19 Q. "20. The issue for the prosecution is whether it can
20 put to the court an honest explanation for its main
21 witness having failed to attend to give evidence. The
22 prosecution needed a medical certificate or other
23 evidence to support the account it had forwarded to the
24 court on 22nd December based on what Ms McKee had said,
25 which was that the child had mumps, swollen testes and
3
1 a risk of going into a fit."
2 If we go over the page, [81962]:
3 "Having sought evidence from the doctors it was
4 clear that other evidence would be required to support
5 the account given to the court. Further enquiries were
6 made of Ms McKee. The result of those enquiries and the
7 investigation that followed only indicated that Ms McKee
8 was prepared to put forward a complex and untruthful
9 account in an attempt to support what she had said
10 earlier about the seriousness of her child's illness and
11 the reason why she had been unable to attend court."
12 That's your evidence on that?
13 A. Yes. If you allow me to correct one matter.
14 Q. Of course.
15 A. I think in my statement in paragraph 18 I said:
16 "It had been recorded that the child had an ear
17 infection, mumps, swollen testes and was fitting."
18 I don't think it was reported that the child had
19 an ear infection. I think that was an error on my part
20 Q. So be it. On those passages where you say, for example,
21 in paragraph 19 in the middle of that passage:
22 "It was inevitable that the prosecution was required
23 to seek further evidence to support the account ..."
24 A. Yes.
25 Q. By "prosecution" I take it you mean the DPP, do you?
4
1 A. Yes. I am sorry. Who else would it be?
2 Q. Well, quite. You don't mean the police?
3 A. No.
4 THE CHAIRMAN: Though the DPP might direct the police to
5 make the enquiries necessary?
6 A. Yes, of course, sir.
7 MR UNDERWOOD: Can I ask you whether, in the light of the
8 opinion you have offered, you think this would have
9 changed the opinion you have reached, and this is the
10 possibility that, as of March 2004, a medical report had
11 been obtained from the GP's practice which showed that
12 the child had swollen testes, a high temperature and
13 a chance of fitting, and the possibility of mumps as of
14 22nd December, would that have changed the picture, do
15 you think?
16 A. Yes, I think it would have.
17 Q. Were you aware, as of 18th March 2004, that when the GP
18 was first resorted to by the DPP and police in
19 December 2003, that the only record the GP had prior to
20 22nd December was on 1st December, a visit?
21 A. I can't honestly remember that. All I can say is that
22 during the course of this I would have had numerous
23 conversations with the Director of Public Prosecutions
24 throughout this period and he would have kept me
25 informed and I would have therefore informed the
5
1 Attorney whenever I thought it was relevant.
2 Q. The reason I put it this way is that the materials that
3 were delivered to you on 18th March did not reveal that?
4 A. No.
5 Q. And it's a possibility you were told. Is that it?
6 A. Yes.
7 Q. Equally, can I show you page [58455]? This is a sort of
8 running police log.
9 A. Okay.
10 Q. If we pick up three-quarters of the way down, there is
11 an entry for Tuesday, 30th December 2003.
12 A. Uh-huh.
13 Q. This is how the Pendine matter first arose:
14 "Tuesday, 30th December 2003.
15 "Police contacted Andrea", and her surname is
16 blanked out, "in relation to the medical treatment
17 received by her son. She stated that [the GP] had
18 called at her home on the evening of 11th December 2003
19 and had prescribed antibiotics and nose drops."
20 Pausing there, were you aware that was the first
21 contention she had made that the GP had done a home
22 visit on 11th December?
23 Again, the reason I ask that is because there was
24 nothing in the materials delivered to you on 18th March
25 which suggested that --
6
1 A. If there was nothing in the materials delivered to me on
2 that date, then I don't think I would have.
3 Q. Likewise, were you aware that that was true, even though
4 it didn't turn up in the GP records?
5 A. No, I wouldn't have been.
6 Q. "She also stated that on Friday, 19th December 2003, she
7 had telephoned the Pendine Park out-of-hours clinic at
8 night because of the child's high temperature. She
9 states that she was told to give him Calpol and to phone
10 back in half an hour. She did this, and as the child's
11 temperature had not come down, she and her partner had
12 taken the child to Pendine Park clinic where they saw
13 a lady doctor."
14 Again, were you conscious that was the height of
15 what she was saying as of 30th December about the
16 treatment at Pendine?
17 A. My understanding of the position would have been based
18 on what the Director had sent me and the discussions
19 I had had with him.
20 Q. Again, take it from me for the moment there is nothing
21 about that in the materials sent to you about the degree
22 of treatment -- if treatment is the word -- at Pendine:
23 namely, that it was about Calpol.
24 You have no recollection that you were told this?
25 A. I have no recollection, no.
7
1 Q. It follows then, does it, that as of 18th March, when
2 you were asked to consider this matter and discuss the
3 matter with the Attorney, that you did not know that the
4 GP's record-keeping was inadequate?
5 A. It depends on what the Director told me. I am sorry.
6 I can't personally remember.
7 Q. I know. Again, I can tell you there is nothing in the
8 materials disclosed to you by the Director, as far as
9 I can tell, to say that the GP got it wrong first time
10 round, that they had gone to Ms McKee, and she had said,
11 "Look, there was a home visit on the 11th", and when
12 they had gone back to the GP, he had said, "Oh, yes,
13 actually, now you mention it, I don't bother keeping
14 records". Sorry, I am putting it a bit high. "Now you
15 mention it, I did do the home visit, but I didn't make a
16 record of it", that wasn't passed on to you in those
17 documents?
18 A. If it wasn't in the documents, and it hadn't been told
19 to me by the Director, I wouldn't have known about it.
20 Q. [33991], can we perhaps look at that? Again, this was
21 not in the documents disclosed to you. I just want to
22 run you through it to see whether you recall being told
23 any of this.
24 It is the note of the meeting at Wrexham police
25 station on 9th January 2004 where present are, amongst
8
1 others, Andrea McKee, Christine Smith and Ivor Morrison.
2 To pick up the text:
3 "Andrea asked by Christine Smith to relate history
4 of son's illness:
5 "Stated:
6 "He started being unwell from start of December.
7 I think it was all coming from MMR injection which he
8 had a few months back - his neck swoll up. Doctor said
9 it was a good thing. Showed vaccination working and his
10 body was fighting infection. Swelling went away then
11 neck started swelling again at start of December. Child
12 had not been well for good couple of months.
13 "He was off nursery.
14 "I was off college as I had tonsillitis. I think it
15 was second week in December - I saw [blank]. I was off
16 college for two weeks. Saw doctor in early December.
17 He said child had the mumps. At that time, Amoxicillin
18 was prescribed. Five-day course. Child spat most of it
19 out. Antibiotic did not help. Went back to doctor
20 again - second visit - at surgery. Different antibiotic
21 given. Then [blank] paid house visit. I was still not
22 well. He prescribed nose drops and third antibiotic.
23 Doctor was worried about swelling of his testicles -
24 orchitis, were swollen before, said it went along with
25 mumps, but was not too dangerous because he had had MMR.
9
1 Visit was some time after second week in December.
2 Doctor said I had to be more forceful in giving
3 medicine. Child had lost weight and was to be given
4 sugar drinks with calories in them.
5 "Wednesday or Thursday of second week that I was
6 off.
7 "Taking medicine. Night when temperature was very
8 high - I didn't know whether I could give Calpol as well
9 as antibiotics. Went to late-night surgery.
10 "I phoned surgery and I go direct to late-night
11 surgery. Bounces on automatically. Redirected to
12 Pendine Park Nursing Home/doctor's surgery."
13 She goes on then to describe the visits to Pendine.
14 Were you told about this specificity of her account
15 of the illness of the child?
16 A. No, I don't recall being told that in detail.
17 Q. And indeed, the relative unimportance, if I can put it
18 that way, about the visit to Pendine?
19 A. I don't recall Calpol.
20 Q. I want to move on from what you were not told to
21 materials that you did get. Can we just check the
22 documents you got? Can we look at [33908]? That's the
23 document you were given on 18th March I think relating
24 to a proposal to offer no evidence the next day. Is
25 that correct?
10
1 A. Yes. I assume that had been faxed to me.
2 Q. Then if we look at [33914], I can take you to the
3 beginning of it, but is that the end page of the summary
4 of events that was attached to that?
5 A. Yes, it looks like it.
6 Q. If we look at [33919], is that the minute -- again we
7 can look at the second page, if you like -- perhaps we
8 should. [33920]. Is that the minute of 16th March that
9 was referred to?
10 A. Yes.
11 Q. Could I have a split screen and have [33919] and [33914]
12 up? On the left-hand side, [33919], can I highlight two
13 final paragraphs, and on [33914] highlight paragraph 35?
14 These are both from Mr Morrison. On the 16th, which is
15 the one on the left-hand side, he says:
16 "While the Pendine mark issue is not a matter which
17 is directly relevant to the essential evidence in the
18 prosecution of Atkinson, Atkinson and Hanvey, it
19 provides a basis upon which the defence will attack her
20 credibility which, without doubt, will be critically
21 damaged.
22 "The prosecution depends upon the evidence of Andrea
23 [blank] not only to prove that the present defendants
24 committed the offences alleged, but also to prove that
25 the offences were committed at all. In view of the
11
1 threadbare state of her credibility, there is no longer
2 a reasonable prospect of convicting any of the
3 defendants of the offences with which they are charged.
4 In reaching this conclusion, I have also considered
5 whether there is any possibility of proceeding with the
6 case without calling Andrea [blank] as a witness."
7 So what that's talking about then is she has lied
8 about Pendine, that, although that's not central to the
9 core of her evidence, if you like, the effect of it is
10 to make her incredible and that no jury or court will
11 believe her. Is that a fair analysis?
12 A. Well, the test is whether or not there is a reasonable
13 prospect of conviction. It is in that context, yes.
14 Q. So that goes to reasonable prospect of conviction. Then
15 if we look at Mr Morrison's note two days later, also
16 given to you, on the right-hand side:
17 "The case is due to be mentioned again in
18 Craigavon Court tomorrow, 19th March 2004, before
19 [blank]. In the absence of satisfactory evidence
20 supporting the information given to the court on
21 22nd December 2003 about the nature and seriousness of
22 Andrea's son's illness, it is probable that [blank]
23 would be unwilling to allow the proceedings to proceed
24 further."
25 Do you see the contrast?
12
1 A. There are two different issues. The first issue is
2 whether or not we actually succeed in explaining to the
3 court why Andrea failed to turn up at the committal
4 proceedings or the preliminary enquiry. That may
5 result -- probably would have resulted in that
6 preliminary enquiry stopping then.
7 There is a second issue as to whether or not her
8 evidence at any subsequent trial would be sufficient to
9 be allowed to be left to a jury.
10 Q. You see, the difficulty on the first of those is that
11 both Miss Smith and Mr Morrison have come here and given
12 evidence and said in all likelihood the magistrate would
13 not have stopped it. Did anybody tell you that?
14 A. No. My view, which I am fairly sure I put to the
15 Attorney, would be that I believed he probably would
16 stop it.
17 Q. If you had been told that Miss Smith and Mr Morrison
18 took the opposite view, would you have told the
19 attorney?
20 A. If I thought there were differing views, yes, I probably
21 would have.
22 Q. Now let's deal with the second component of this, the
23 possibility of a conviction if the matter got to trial.
24 Can we have a look at page [20098], please? This is
25 the transcript of the sentencing or rather the plea of
13
1 guilty and sentencing, on 7th May 2002, of the McKees.
2 If we go over the page, [20099]. I take it you
3 never saw this?
4 A. I have never seen this, no.
5 Q. If I pick it up in the final paragraph. This is the
6 Crown opening:
7 "Amongst the police attending at the scene at that
8 time was a full-time reserve police officer. The
9 defendants at this time were married and living in the
10 Craigavon area and they owned and ran a gym teaching
11 martial arts. They had become very friendly with this
12 reserve police officer and his wife and that was through
13 the fact that the reserve officer's daughter was a
14 member of this gym and both couples visited each other's
15 homes and attended social events and went on trips
16 together in connection with the gym."
17 Overleaf, [20100], I need to read all of this, I am
18 afraid:
19 "After the attack on Mr Hamill, information came to
20 the attention of the police that this reserve constable
21 had made an early phone call to the home of the
22 suspected attacker, namely, the boyfriend of the
23 defendant's niece, advising him to dispose of the
24 clothing that he was wearing earlier. Indeed, if your
25 Honour pleases, might I say at this stage Mrs McKee
14
1 played a significant part in ensuring that this
2 information came to the attention of the police and at
3 one stage accompanied the person to the police station.
4 "As a result of this information coming to police
5 notice, the reserve constable was interviewed by
6 an investigating detective. However, he denied making
7 the phone call throughout that interview. The police
8 were able to establish that the phone call in fact had
9 been made from his telephone to the home of a person
10 suspected. The reserve constable (inaudible) and
11 recognised that it had serious consequences (inaudible)
12 so far as he was concerned, and so he got Mr McKee to
13 take responsibility for making the phone call, saying
14 that he, Mr McKee, and Mrs McKee stayed over at his home
15 on the night of the attack with his wife. The next
16 morning the reserve constable's wife (inaudible) and he,
17 Mr McKee, thinking that his niece would also be in the
18 town centre, was concerned for her safety and therefore
19 rang the suspect's home, the boyfriend, to enquire about
20 her safety."
21 Then over the page, [20101]:
22 "Mrs McKee was told that she was needed to support
23 his account and, accordingly, Mr McKee made a statement
24 to the police to that effect on 9th October 1997 and
25 Mrs McKee made her statement corroborating what her
15
1 husband had said on 29.10.97 and added that, in fact, it
2 was her who gave him the number to call.
3 "As a result of these two statements coming to the
4 police, the particular investigations which the police
5 were involved in were brought to on end. Later, your
6 Honour, the marriage of Mr and Mrs McKee broke up and
7 the gym was closed and the defendants went their
8 separate ways, Mrs McKee moving away from
9 Northern Ireland, and it wasn't until June 2000, when
10 the police visited Mrs McKee, that the situation
11 changed. She then told police that she had not stayed
12 at the home of the reserve constable on the night in
13 question, that the reserve constable spoke to her
14 husband and asked him to cover the phone call that he,
15 the reserve constable, made to the home of someone
16 suspected of involvement in the attack and that
17 Mrs Hamill was asked to support", that should be, of
18 course, "Mrs McKee", "that story."
19 If we go over to [20102], the final paragraph there:
20 "Mr McKee was also visited by the police in
21 June 2000 but he told them at that time that the
22 position was still the same, that he had, in fact,
23 stayed over at the police officer's house. He was
24 interviewed on 14th April 2001 for providing false
25 information, and in the course of that interview, he
16
1 admitted that, in fact, he had made a statement which
2 was false, that he had not stayed in the reserve
3 constable's house on the date in question, nor had he
4 made the phone call. He said he was a friend of the
5 reserve constable for a number of years and he was asked
6 to say", overleaf, [20103], "that he had made the phone
7 call, and, because he was a friend, and the only friend
8 he had in Northern Ireland, he said yes. He agreed to
9 cover it and to say he had made the phone call about the
10 matter, your Honour. All he said was that the reserve
11 constable wanted this done and he decided to do it."
12 It talks about some drink and seriousness. Then the
13 next paragraph:
14 "It is the prosecution case, your Honour, that both
15 persons knew the reason why they were being asked to say
16 that Mr McKee had made the phone call was to give
17 a false alibi to the reserve constable knowing that he
18 had been (inaudible). Indeed, your Honour, they were
19 aware also, the prosecution say, that it would interfere
20 with investigations going on at that time. Those are
21 the facts, your Honour."
22 So that's the background then to the plea of guilty
23 entered by both the McKees.
24 Were you aware on 18th March 2009 that Mr Morrison
25 believed those pleas to have been proper?
17
1 A. I am fairly sure I would have been, yes.
2 Q. Were you aware that, on 18th March 2004, Mr Morrison
3 believed a jury would probably believe those pleas were
4 true?
5 A. I don't see any reason why they shouldn't.
6 Q. If the responsible officer in the DPP believed that both
7 the McKees had truly pleaded guilty and a jury would
8 believe that in the light of what we have just seen
9 about the Crown opening, what was wrong with advancing
10 Mrs McKee as a witness in the trial against Atkinson?
11 A. You are really asking the question as to whether or not
12 the prosecution believed the story that Mrs McKee gave
13 was true.
14 Q. No, I am asking you a question based on the premise that
15 Mr Morrison believed the jury would believe it to be
16 true.
17 A. Forgive me. I may have misunderstood the question.
18 I can't say what Ivor Morrison believed. I can say what
19 I was told.
20 Q. Exactly. So --
21 A. I can also say no doubt a jury would give considerable
22 weight to her story based on the fact that she had
23 actually pleaded to that offence.
24 Q. I am asking whether -- let me put it this way. If
25 somebody had told you on 18th March that Mr Morrison
18
1 believed that a jury would accept that that was a true
2 plea, ie that Mrs McKee had told the truth when she
3 pleaded guilty, would you have passed that on to the
4 Attorney?
5 A. I would have passed any relevant information which
6 I believed to be relevant to the issues that the
7 Attorney had to consider to the Attorney.
8 THE CHAIRMAN: Would you have believed this to be relevant,
9 that you are being asked about now, Mr Morrison's
10 belief?
11 A. What would have happened was, if I had been told about
12 that, I would have raised further questions with the
13 Director of Public Prosecutions to try to clarify the
14 issue, sir.
15 THE CHAIRMAN: Thank you. In other words, that would
16 involve telling him what Mr Morrison's belief was?
17 A. It depends. What I would try to get to the Attorney,
18 sir, would be as accurate a story as I possibly could.
19 If I was being two different things by the prosecution,
20 I would seek to try to clarify that. I would go back to
21 the Director and I would ask him to clarify it.
22 If that meant the Director speaking to Ivor Morrison
23 again, that would then be passed on to me, and yes,
24 I would brief the Attorney accordingly.
25 MR UNDERWOOD: Thank you very much.
19
1 A. Sorry. Does that --
2 MR UNDERWOOD: That entirely satisfactorily answers it as
3 far as I am concerned. Thank you. Those are the only
4 questions I have. It may be that others have some more.
5 MR WOLFE: I have no questions.
6 MR O'HARE: No questions.
7 Questions from MR McGRORY
8 MR McGRORY: I have a very few questions on behalf of the
9 family of Robert Hamill.
10 If we could look at [33908]. This is the covering
11 letter of 18 March -- you have already seen it on the
12 screen -- of information sent to you on that date.
13 You were sent an opinion of Mr Simpson dated
14 15th March. There is another much earlier opinion of
15 Mr Simpson in which he directed the prosecution
16 initially and in which he addressed the issue of
17 Andrea McKee's credibility on the main issue in view of
18 the fact that she had lied initially.
19 That opinion doesn't seem to have been sent to you
20 on 15th March.
21 A. I don't recall seeing it.
22 Q. Sorry. 18th March.
23 A. No, it wasn't sent to me on 18th March.
24 Q. Obviously, it wasn't brought to your attention at the
25 time consideration was being given to withdraw this
20
1 prosecution?
2 A. Mr Simpson's earlier advice, is it?
3 Q. Yes.
4 A. No. I don't recall seeing it. I think if they had been
5 on the file I would have divulged them as part of the
6 disclosure process to the Inquiry.
7 Q. Indeed. Can you clarify one other thing for me,
8 Mr McGinty? Again, it arises out of a document at
9 [33886]. This is a memorandum or a note the Director
10 took of a telephone conversation he had with you at
11 5.30 pm later on 18th March.
12 A. Yes. 5.50 I think it says, but yes.
13 Q. In which you inform him that the Attorney had noted that
14 Witness A had pleaded guilty to the offence of
15 attempting to pervert the course of justice.
16 A. Yes.
17 Q. Now, was this something which you had drawn to the
18 Attorney's attention or that the Attorney had raised
19 with you?
20 A. The Attorney had been taking a sort of fairly close
21 interest in this case. This had been going on for quite
22 a long time. It was high profile. It was a sensitive
23 case. In the background there was a lot going on with
24 Cory and with the report and with questions to us as to
25 whether the report could be published in full or
21
1 redacted because of the Atkinson statement.
2 I am saying all this because the Attorney would have
3 been keeping -- would have been well-informed about this
4 case. He would have been aware, of course, of
5 Mrs McKee's pleading guilty to the offence at an earlier
6 stage, and I would have drawn it to his attention again
7 or he would have drawn it to my attention when I went
8 down to discuss it with him on 18th March.
9 I think what it means there is that, having decided
10 not to intervene in the decision of the Director in
11 particular case, he was anxious that the Director give
12 as full an explanation as he could of why he had reached
13 that decision.
14 One of the issues was it would seem odd the decision
15 had been made not to proceed, in the light of Mrs McKee
16 earlier pleading guilty. That was one of the things he
17 thought should be dealt with in any explanation that was
18 given.
19 Q. Indeed, what you are doing here really is drawing the
20 Director's attention to this factor which was an issue
21 which had been discussed between you --
22 A. Which the Attorney considered to be a relevant
23 consideration to deal with.
24 Q. Indeed. You saw fit to ring the Director to tell him
25 this?
22
1 A. Yes.
2 MR McGRORY: Thank you.
3 MS DINSMORE: No questions.
4 Questions from MR DALY
5 MR DALY: Mr McGinty, on behalf of Andrea McKee, it seems to
6 be your evidence that you believed the RM would stop the
7 proceedings?
8 A. I did, yes.
9 Q. Why did you believe that?
10 A. Because Mrs McKee was the key and prime witness for this
11 matter; that the matter had already been adjourned once;
12 that three days had been set aside for this; that the
13 indication that she was not going to attend only arrived
14 at a very late stage; that an explanation was given for
15 that; and that, as you know, it was adjourned so that
16 the prosecution could come back with evidence that the
17 justification she had given for not turning up was
18 actually true.
19 Q. The first adjournment was nothing to do with Mrs McKee.
20 Isn't that right?
21 A. No, it wasn't.
22 Q. Why do you say that was relevant?
23 A. Because this was a serious matter. These are -- the
24 police officer was facing a charge which was extremely
25 serious. Indeed, it is difficult to think of a more
23
1 serious charge that a police officer could face. There
2 had already been delays in the case.
3 Q. For those reasons, you genuinely believed the RM would
4 stop the committal proceedings?
5 A. Yes.
6 Q. What's your understanding of the test to be applied by
7 the RM?
8 A. I think he has to balance a number of things here. He
9 has to balance the fairness of the trial process, the
10 fairness of the defendants. He has to consider delay.
11 He has to consider whether the prosecution have
12 fulfilled their responsibility.
13 Q. What's your understanding of the test he has to apply to
14 committal proceedings and to the evidence before him?
15 A. That there is sufficient evidence to put to trial. What
16 test do you mean, sir? Sorry.
17 Q. I am just interested in your understanding as the person
18 who is advising the Attorney.
19 A. Uh-huh.
20 Q. Is that the height of your understanding?
21 A. That's what my understanding is, yes. We have all gone
22 through committal proceedings. We all know that if the
23 defence have sought prosecution witnesses to be called
24 and if a prosecution witness doesn't turn up, you can
25 expect a defence application that the case should not be
24
1 adjourned, that it should be stopped then.
2 It is then obviously open to the prosecution to
3 decide whether or not to accept that or whether to seek
4 to commit again.
5 Q. Would you agree in general that parties are given
6 an opportunity for at least one adjournment in these
7 proceedings in terms of general practice?
8 A. Often.
9 Q. There had been no adjournment granted to the prosecution
10 previously in these committal proceedings?
11 A. Not to the prosecution, I understand, no.
12 Q. And that the --
13 A. Can I just say this? I don't see this is actually sort
14 of relevant to the test that the Director actually had
15 to apply. Whether the committal proceedings had been
16 stopped then or not, the advice that the Attorney was
17 being given by the Director was that, even if those had
18 gone ahead, and even if it had gone to a trial, the
19 prosecution would not be able to rely on Mrs McKee as
20 a credible witness.
21 Q. Are you aware --
22 A. Whether I was right or wrong about the committal
23 proceedings doesn't seem to me to be ... sorry.
24 I shouldn't have interrupted.
25 MR DALY: I have no further questions.
25
1 Questions from MR EMMERSON
2 MR EMMERSON: Just to pick up that line of reasoning with
3 you for a moment, if I may, what you seem to be saying,
4 if I have understood it correctly, is that whether or
5 not the case got through committal, the focal test that
6 was being applied by the Director, as you understood it,
7 and presumably on your advice by the Attorney, was
8 whether the doubts that had arisen about Andrea McKee's
9 credibility based on the lies she had told about Pendine
10 were such as to result in a situation where there was no
11 longer a reasonable prospect of conviction. Is that
12 right?
13 A. Absolutely. Even if we had actually failed at that
14 committal stage, even if I had been right and the
15 committal had failed at that stage, it was always open
16 to the prosecution again, if they saw fit to charge her
17 again, and to seek to commit later, or, indeed, the
18 Attorney could have issued a voluntary bill.
19 The question was whether, at the end of the day, it
20 could proceed to trial with her as a witness.
21 Q. So just to be clear about that, had the committal failed
22 for reasons of her non-attendance, that's to say for
23 reasons unconnected with an assessment of the weight of
24 the evidence, the matter could have been, you say,
25 brought to trial either by the reissuing of proceedings
26
1 or by a voluntary bill?
2 A. Yes.
3 Q. Similarly, had the matter been committed for trial, the
4 test of whether there was a reasonable prospect of
5 conviction would remain?
6 A. Yes.
7 Q. It's been suggested as a material consideration to the
8 approach that the magistrate would have taken that
9 a magistrate is required to take the evidence of
10 witnesses at their highest in committal proceedings and
11 therefore to ignore matters that are relevant to their
12 credibility when deciding whether there is a case for
13 the accused to answer. Do you understand?
14 A. Yes, I do.
15 Q. Obviously, if that's right, does that affect the overall
16 test that needs to be applied in a situation such as
17 this, where doubts have arisen about the credibility of
18 a witness and a judgment is taken that that is going to
19 affect the reasonable prospects at trial?
20 A. No. The test the prosecution applies is whether or not
21 there is a reasonable prospect of the accused being
22 convicted. That's the trial process.
23 Q. You were asked a number of questions by Mr Underwood
24 about how much detail you were given about the medical
25 material that was available in different ways to the
27
1 prosecution, either accounts given by Andrea McKee in
2 consultation about her own reports about the child's
3 illness at different times, or, indeed, the precise
4 nature of the interchange, as she described it, in
5 relation to her attendance at Pendine.
6 Can I ask that you be shown [33912], please, which
7 is an extract from Mr Morrison's summary of events?
8 I just want to take it through with you, if I can. If
9 you look at paragraphs 20 and 21.
10 A. Yes.
11 Q. You were asked whether you knew about the 11th December
12 home visit, whether you realised that that was something
13 that had only emerged subsequently. We know you had
14 this document. Didn't you?
15 A. Yes.
16 Q. "By the time the case was mentioned in early January",
17 says Mr Morrison, "police had been unable to obtain
18 medical evidence which fully supported Andrea McKee's
19 assertion that her child was suffering from mumps and
20 had been brought to the doctor and diagnosed with mumps
21 during the weekend of 19, 20 and 21 December."
22 Now, pausing there for a moment, again you may or
23 may not remember this, or indeed know it, but it was on
24 30th December that Andrea McKee said that during that
25 weekend she had taken the child to the Pendine surgery.
28
1 Were you aware of that?
2 A. I can't remember now, but I'm sure I had been told that.
3 Q. "Medical evidence was obtained which showed that she had
4 visited her own doctor with her son on 1st December when
5 he was diagnosed as having an ear infection with the
6 possibility of mumps. Further enquiries showed that her
7 own doctor had visited her home on 11th December when
8 [the child] was again found to be suffering from an ear
9 infection and the possibility of mumps as well. She
10 again visited her own doctor on 22nd December, the day
11 when she should have been at Craigavon Court, when [the
12 child] was diagnosed again as having an ear infection in
13 both ears."
14 Do you see that?
15 A. Yes, I do.
16 Q. So we can be absolutely clear that both you and the
17 Attorney were fully aware that there was independent
18 medical evidence establishing that the child had
19 a sickness related to its ears and the possibility of
20 mumps throughout the month?
21 A. I may have been told a number of things leading up to
22 this. When I was preparing the briefing for the
23 Attorney what I would have done was base it on the
24 material sent to me by the Director.
25 Q. That includes this document?
29
1 A. That includes this document. That would have gone up to
2 the Attorney as well and he would have read it.
3 Q. So the Attorney would most certainly have known the
4 questions that had arisen surrounding her attendance at
5 Pendine were being evaluated against the background of
6 the fact that there was independent medical evidence
7 that established that the child had seen a doctor on
8 those three dates?
9 A. Yes.
10 Q. Presumably, the Attorney was very, very well aware --
11 because you said he was familiar with the case as
12 a whole -- of Andrea McKee and her husband's pleas of
13 guilty?
14 A. Yes.
15 Q. You say at paragraph 21 -- you go on to -- sorry.
16 Mr Morrison goes on in paragraph 21 -- I apologise -- to
17 deal with the account that Andrea began to give about
18 her attendance at Pendine Park. Then the note -- we
19 don't need to look at it, but the note then goes on to
20 describe the various attempts that were made to
21 substantiate that account.
22 Against that background, can we just look back to
23 your witness statement at [81961], please? I would like
24 to look, if I may, with you at paragraph 19. You
25 describe there in the first few lines the need for
30
1 further medical evidence to support the account that had
2 been given.
3 A. Uh-huh.
4 Q. If I have understood it correctly, that's because the
5 medical reports, as described by Mr Morrison's note, did
6 not fully support the diagnosis that had been the
7 subject of representations to the court.
8 A. That was my understanding.
9 Q. But you then go on in the final sentence to say:
10 "By making the claim she did, the issue became, not
11 whether her child was ill, but whether she had been
12 truthful in her explanation for her failure to attend
13 court."
14 Is that right?
15 A. I believe so. I think it was a question of she had
16 failed to attend court and she had given a reason for
17 it. The prosecution were then under a duty to assure
18 the court that she had, in fact, been justified in not
19 attending court.
20 Q. Yes. When you say, "By making the claim she did", are
21 you referring there to the Pendine attendance the
22 weekend before she was due to attend court?
23 A. I was probably basing it on the claim she made as to the
24 seriousness of the illness that the baby had.
25 Q. I see. So the focus of attention in your mind was then
31
1 on whether or not she had misled the prosecution and the
2 police --
3 A. Yes.
4 Q. -- rather than on whether the child was sick?
5 A. Yes. The child was undoubtedly sick and the child had
6 an ear infection. The question in my mind was whether
7 or not she had given sufficient justification for not
8 appearing at court.
9 Q. Yes. Now, you had read Mr Simpson's opinion presumably.
10
11 A. Yes. The one that came with it.
12 Q. The opinion dealing with Andrea McKee's credibility?
13 A. Yes.
14 Q. We can take it that the Attorney would have read that
15 also?
16 A. He would have read all of the material that was given to
17 him.
18 Q. You knew Mr Simpson personally. Is that right?
19 A. I did, and do.
20 Q. We can take it, I think, from your statement that you
21 would have regarded his judgment as a matter to which
22 great weight should attach?
23 A. Yes.
24 Q. Presumably from reading his judgment, you would have
25 come to realise that, during the course of the
32
1 consultation on 2nd March, Andrea McKee had changed her
2 story again in order to accommodate an inconsistency?
3 A. Yes.
4 Q. When you provided your written briefing to the Attorney,
5 it seems from the written note of your subsequent
6 telephone conversation with him that there was also some
7 sort of oral briefing between yourself and the Attorney.
8 A. Yes. I am fairly sure what would have happened.
9 I can't remember now, but what would have happened is
10 that the briefing would have gone down, the Attorney had
11 presumably been concerned about aspects of it, I would
12 have gone down to speak to him and he would have asked
13 me various questions and I would have tried to respond
14 to them. He would have passed on what his view was. He
15 may have asked me to ask things of the Director, but,
16 yes.
17 Q. To be absolutely clear, by the time this decision was
18 being made, the focus was, as I think you told us, not
19 on the child's illness or the extent of it, but on the
20 truthfulness of the witness herself?
21 A. Yes.
22 Q. Can I ask you then just to look at paragraph 22 of your
23 statement, which is on [81962]? You then explain the
24 process through which the decision of the Attorney came
25 to be made, because, briefed with this material, you
33
1 tell us at 22:
2 "The issue before the Attorney General was whether
3 he thought the conclusion that the Director was minded
4 to reach, that is that Mrs McKee was not a credible
5 witness, was a reasonable one."
6 A. Yes.
7 Q. So no doubt at all. The Attorney's decision was not
8 about whether he thought the child was sick or even how
9 sick the child was, but whether, in the light of the way
10 the situation had evolved, he thought that the
11 conclusion that Andrea McKee could no longer be regarded
12 as credible was a reasonable one?
13 A. Yes. The only test for the Attorney was again whether
14 the test for prosecution could actually have been met,
15 and the illness of the child was not directly relevant
16 to that.
17 Q. Yes. She might have been giving an account to the
18 police about other matters altogether, but if she had
19 told a series of lies to them or the prosecutors, that
20 would be something which might affect her credibility
21 irrespective of what it was she was lying about?
22 A. Yes.
23 Q. You are quite satisfied that the Attorney understood
24 that?
25 A. Completely satisfied.
34
1 Q. Had he thought the judgment that was being made was not
2 a reasonable one, he would have had a power to direct
3 a different decision, would he not?
4 A. He have would have had a power to direct. It wouldn't
5 have happened that way. He would have gone back to the
6 Director, but, yes, he would have had a power to direct.
7 Q. If we look at [81963] and, paragraph 23, in the last
8 three lines of that paragraph, you say to us:
9 "In the light of the material placed before him, the
10 Attorney General was satisfied that the decision to
11 discontinue this case was a reasonable one and that he
12 had no cause to issue a direction to the Director to
13 continue with this prosecution."
14 A. Yes.
15 Q. So based on all the material he had and on the briefings
16 that you had given him, both in writing and presumably
17 to some extent orally as well, and his understanding
18 that the issue was credibility, not the child's health,
19 and his knowledge of the pleas of guilty, he took the
20 view this was a reasonable exercise of prosecutorial
21 judgment?
22 A. Yes, and he would have taken that very seriously.
23 [The Attorney] was not necessarily an easy man to
24 persuade. He needed to be sure of things, very sure of
25 things himself. This was, again, as I say, a high
35
1 profile case. There were reputational issues for him
2 here. He may have to answer questions about this in the
3 House. He might have to answer questions from MPs. He
4 would want to be sure, and indeed I know that he was
5 sure, that he was reaching the right decision and had
6 sufficient information on which to reach that decision.
7 Q. You have been asked various questions by Mr Underwood
8 and Mr McGrory about points of detail, like the fact you
9 said you were not told about Calpol, for example --
10 A. I can't remember being told about Calpol.
11 Q. -- the precise details Andrea McKee had given to
12 Christine Smith about when the child was not well in the
13 early part of December and all those sorts of matters.
14 A. Yes.
15 Q. Indeed, Mr McGrory mentioned the plea of guilty.
16 Has anything that has been put to you in
17 cross-examination changed your view of the advice you
18 would have given to the Attorney?
19 A. No.
20 Q. Has it any relevance at all, in the end, to the
21 substantive issue the Attorney had to decide in your
22 judgment?
23 A. I don't believe it does.
24 Q. So the decision would have been exactly the same, had
25 you been aware of all the material that has been put to
36
1 you?
2 A. Yes.
3 Q. So far as the issue of the plea of guilty is concerned,
4 we have seen from the Director's minute of the telephone
5 conversation he had with you later that day which
6 Mr McGrory took you to, that the Attorney had obviously
7 asked you to particularly raise the issue of the pleas
8 of guilty. Correct?
9 A. Yes.
10 Q. In what context was he asking to you raise those?
11 A. I can't specifically remember. I would have expected
12 him, because he was always -- he always had very strong
13 views that the prosecution should try to seek to explain
14 their decisions as clearly as they could, that this was
15 something that was relevant and that people would pick
16 up on and that this should be explained. That's my
17 assessment at this stage.
18 Q. Yes. Mr McGinty, you had in your written briefing to
19 the Attorney flagged up, had you not, the fact that
20 different people might take a different view of whether
21 a lie told about Pendine went to the witness'
22 credibility on the central issue, that there could be
23 two points of view about that, and that was something
24 that you drew to the Attorney's attention as an issue he
25 would want to focus on. Is that right?
37
1 A. Yes.
2 Q. Can we assume that he had raised with you the pleas of
3 guilty as one of the factors tending in favour of
4 a prosecution?
5 A. I would have thought so.
6 Q. You, therefore, duly raised that with the Director, and
7 the Director indicated to you, as one would expect,
8 that, just as the Attorney had taken it into account, he
9 had taken that into account, but you were satisfied
10 nonetheless that the Attorney's view this was
11 a reasonable decision was not in any sense contingent on
12 the view that may be taken about the pleas of guilty in
13 one way or another?
14 A. No, I think because of what actually happened, that,
15 when I had left the Attorney, he had probably already --
16 he would have reached his decision. He would have been
17 satisfied on the material that he had and that what
18 I had been asked to do was to go back to the Director
19 and say, "Make sure you cover this".
20 Q. Yes.
21 A. Otherwise, I suspect I would have had to go back to the
22 Attorney if there was a question I had to ask of the
23 Director.
24 Q. "Make sure you cover this", in what sense; in the
25 reasons given, or in the decision-making process, or in
38
1 the announcement made in court, or what?
2 A. Probably a combination of those things. It would need
3 to be covered. Because, on the face of it, it seems odd
4 that Mrs McKee, having pleaded guilty to an offence, we
5 are then saying she can't be believed on that or put
6 forward as a credible witness in the trial, and,
7 therefore, the Attorney would want that covered in some
8 way by the Director when the explanation was given.
9 MR EMMERSON: Yes. Thank you.
10 Further questions from MR UNDERWOOD
11 MR UNDERWOOD: Mr McGinty, I really don't want to replay the
12 judicial review about the terms of reference, so I am
13 going to stalk carefully.
14 Would it be fair to say that the Attorney General's
15 department is completely satisfied that the Director of
16 Public Prosecution's office should not even be included
17 in the terms of reference of this Inquiry?
18 A. Am I the right person to answer that?
19 Q. Yes. You instructed [Senior Counsel], didn't you?
20 A. No. [Senior Counsel] was instructed by the Secretary of
21 State for Northern Ireland. We facilitated that.
22 Q. Yes. Were you his instructing solicitor?
23 A. I provided him with the materials and the instructions
24 that were sent to him were drafted by me and the
25 Northern Ireland Office and cleared by both.
39
1 Does that make me instructing solicitor? I don't
2 know.
3 Q. It may not matter. There are two questions I am really
4 asking you here.
5 Firstly, would you accept that the Attorney
6 General's department has a satisfaction that the
7 Director of Public Prosecution's office did nothing
8 wrong in relation to matters being enquired into here.
9 A. The view of the department as such is not relevant. It
10 is the Attorney's view. That sounds -- may sound odd,
11 but it is not. It is the Attorney's view. We are not
12 like other departments in the sense that officials can
13 go off and work by themselves.
14 Q. Is it the current Attorney's view that the Director
15 should not even be included in the terms of reference?
16 A. Yes.
17 Q. Do you agree with that -- I am so sorry.
18 A. I believe that to be the view, yes, and I base that on
19 a letter that she wrote.
20 Q. Exactly. Do you share that view?
21 A. Yes.
22 Q. Would you accept that if you are asked hypothetical
23 questions now about documents you didn't see in March
24 and how they might have affected what a different
25 Attorney would have done, your answers might be coloured
40
1 by that view?
2 A. I would hope -- I would try to ensure they didn't,
3 but ...
4 Q. In the heat of giving evidence with documents you have
5 never seen before, it is quite difficult to hypothesise,
6 is it not, without a risk of being coloured?
7 A. I am sure there must be, but one can only do one's best.
8 Q. Of course. I am not suggesting you are doing anything
9 other than your best, Mr McGinty. I am just asking you
10 to accept there may be a risk that being asked to answer
11 hypothetical questions may result in an answer that is
12 not necessarily accurate.
13 A. Are you asking me that, because the Attorney did not
14 want the terms of reference extended to cover the
15 prosecution and its decisions, I am colouring my answers
16 in order to justify that stance?
17 Q. No.
18 A. The answer is no.
19 Q. No, I am not asking you that question at all, which is
20 why I so carefully asked whether you shared the
21 Attorney's opinion and whether you accept the risk that
22 answering hypothetical questions that have never been
23 posed to you before on documents you have never seen
24 before in the witness box might result in a colouring of
25 your answers.
41
1 A. I would hope that they wouldn't, but what can I say?
2 Q. Which takes me to the specific. You told me and the
3 Chairman that, if you had been told that Mr Morrison
4 believed the jury would probably find that the McKees'
5 pleas of guilty were true pleas, that's something you
6 would have put before the Attorney as a relevant matter
7 or at least gone back to the Director about, because you
8 regarded it as a relevant matter.
9 Do you still stand by that evidence?
10 A. It is something the Attorney would have considered
11 anyway. I mean to say, if -- as Mrs McKee had actually
12 pleaded guilty to these offences, that is something that
13 clearly the jury would want to give some weight to.
14 It is whether it would actually be undermined by all
15 the other stuff that we put to her, it is the
16 cross-examination she would have had to undergo by the
17 defence.
18 Q. Forgive me. I am not making this point clear.
19 Mr Morrison believed the jury would believe she entered
20 a true plea. That's the point I am making. You earlier
21 accepted, if you had been told that, that's a matter
22 which would have raised questions with you.
23 A. I think I tried to -- yes, I think I tried to clarify
24 that, if some other message came to me which suggested
25 that the prosecution's view as not as set out in the
42
1 Director's minute, then I would have gone back to the
2 Director to get that clarified.
3 Q. You don't know what the answer would have been, do you?
4 A. It didn't happen, so, no, I don't know what the answer
5 would be.
6 Q. So how can you possibly say that in the light of all
7 these piffling details, as the Director would now
8 suggest these are, the Director would have reached the
9 same conclusion if he had known about them?
10 A. I think you are getting the Director next. You can --
11 probably better ask the Director.
12 MR UNDERWOOD: Exactly. Thank you.
13 Questions from THE PANEL
14 THE CHAIRMAN: Just two matters.
15 A. Sir.
16 THE CHAIRMAN: You mentioned a voluntary bill being given by
17 the Attorney.
18 A. Yes.
19 THE CHAIRMAN: In England it is done by a High Court judge.
20 Is it done by the Attorney in respect of Irish cases?
21 A. It is different in Northern Ireland -- it was different
22 in Northern Ireland. The Attorney had a power to issue
23 a voluntary bill without having to go to court.
24 I hesitate because, at some stage -- and I can't
25 remember whether it was before 2004 or after it -- the
43
1 Attorney actually told the Chief Justice that he would
2 not use that power.
3 THE CHAIRMAN: Yes, I see.
4 A. The power to go to a judge I think always did exist in
5 Northern Ireland as well. It is just the Attorney --
6 THE CHAIRMAN: There were two routes?
7 A. Yes.
8 THE CHAIRMAN: Thank you. The other matter is this. You
9 said -- I am paraphrasing now -- that your view about
10 the advice you gave to the Attorney General hasn't been
11 changed by anything you have been asked about today.
12 Can one put that in a slightly different way: that;
13 your view about whether the Attorney was justified in
14 thinking the DPP's decision was a reasonable one hasn't
15 been changed? That's really what it comes to, doesn't
16 it?
17 A. I have to be careful, sir. I can, in a sense, explain
18 whether or not my advice and my briefing to the Attorney
19 would have altered. I can't sort of say what the
20 Attorney would or -- all I can say is, on the basis he
21 took no action, I am satisfied that he was satisfied
22 that the decision was not an unreasonable one. I am
23 sorry. Is that not what you are asking?
24 THE CHAIRMAN: You see, it is true -- I think it was
25 a leading question, but you assented to it; I hope my
44
1 paraphrase of it is fair -- that your view about the
2 advice you gave to the Attorney hasn't been changed --
3 A. No.
4 THE CHAIRMAN: -- and nothing raised today is relevant to
5 the judgment the Attorney had to make.
6 A. No. I think that's right. I am sorry. I think that's
7 right.
8 THE CHAIRMAN: That's in effect saying nothing you have
9 heard today is relevant to the question whether to view
10 Andrea McKee's credibility as effectively spent has
11 changed?
12 A. No. I don't think I would have changed my briefing to
13 the Attorney.
14 THE CHAIRMAN: Yes. Thank you. Thank you very much.
15 MR UNDERWOOD: Thank you, Mr McGinty.
16 (The witness withdrew)
17 MR UNDERWOOD: Sir Alasdair Fraser, please.
18 THE CHAIRMAN: Before you call him, my present view is that
19 the precedent magistrate would have no power in law to
20 stop the proceedings. He would have power to say, "It
21 will go on on the date set or some other date and
22 I shall not be prepared to grant any adjournment if
23 Andrea McKee does not come".
24 Now, if that's an incorrect view, at some stage
25 I hope I shall be drawn to the relevant law which shows
45
1 I am wrong.
2 MR UNDERWOOD: Certainly that's what has emerged from the
3 evidence, I would respectfully suggest. If there is any
4 other evidence or law on that point, no doubt somebody
5 will bring it to my attention as well.
6 THE CHAIRMAN: Mr McGinty's evidence has been slightly
7 different. He is of the view that it lay within the
8 magistrate's powers simply to stop the case.
9 MR UNDERWOOD: I would apprehend that he shifted slightly
10 from that under cross-examination.
11 THE CHAIRMAN: Yes. Anyway, if I am wrong in my view,
12 I shall hope to be put right.
13 MR UNDERWOOD: Certainly.
14 THE CHAIRMAN: Thank you.
15 SIR ALASDAIR McLAREN FRASER (sworn)
16 Questions from MR UNDERWOOD
17 MR UNDERWOOD: Good morning, Sir Alasdair. You will find
18 the questions are coming from here, even though the
19 sound may be coming from somewhere else.
20 May I ask your full names, please?
21 A. Alasdair McLaren Fraser.
22 Q. Thank you.
23 We have a witness statement from you, which I think
24 you signed over the last day or so. Is that right?
25 A. Yes. Yesterday, I believe.
46
1 Q. Inevitably I don't have page numbers for it.
2 THE CHAIRMAN: Page [82032].
3 MR UNDERWOOD: Thank you very much, sir. I am sorry,
4 Sir Alasdair. We have a glitch. It is page [82032].
5 Would you mind keeping your eye on this while we
6 scroll quite briefly through the 15 pages of it?
7 A. Sure.
8 Q. Is that your witness statement?
9 A. Yes.
10 Q. Are the contents true?
11 A. Yes.
12 Q. Can I ask you about the general approach to the test for
13 prosecution? Do I take it from your statement that it
14 didn't vary according to whether the case was high
15 profile or whether the defendant was a policeman or
16 a lay person?
17 A. I think that's a very important point. The test for
18 prosecution is a constant test that is applied equally
19 to every individual who is reported and there are no
20 differences to be drawn between police, members of the
21 army or security forces, and the people. It's a single
22 test that is applied, I hope fairly, to everyone on the
23 same basis.
24 Q. It also is true, is it, that you would apply the test
25 regardless of whether the forum was a Diplock trial or
47
1 a jury?
2 A. Yes. The mode of trial has no effect on the application
3 of the test. The test is a test that addresses the
4 likelihood of a conviction before an impartial Tribunal
5 of fact. Part of the directions in accordance with the
6 law. So A judge sitting alone would be the same as
7 a jury and would be the same as a magistrate.
8 THE CHAIRMAN: And would be the same whatever the nature of
9 the case or the public interest in it?
10 A. Exactly.
11 THE CHAIRMAN: Thank you.
12 MR UNDERWOOD: Thank you. I want to ask you something about
13 the practice by which prosecution witnesses could be
14 seen in conference or consultation by counsel. We know
15 here that Tracey Clarke and Timothy Jameson, who were
16 the primary witnesses, if I can call them that, in the
17 proposed murder trial, had, prior to making their
18 witness statements, given inconsistent answers in what
19 are called QPFs, questionnaires.
20 Were you aware of that for a start?
21 A. No.
22 Q. In each case, both of them had been seen by police and
23 had signed off a questionnaire, I think in each case
24 a day or so before they gave their witness statement,
25 and in each case the questionnaire said they had seen
48
1 nothing, in essence.
2 We also know, of course, that Mr Atkinson, who was
3 a police witness in the murder, had an allegation made
4 against him that he had tipped off Allister Hanvey and
5 by inference may have seen Allister Hanvey doing
6 something which required him to dispose of his clothing.
7 You are aware of that, of course.
8 A. Yes.
9 Q. None of those people were tested by counsel as to their
10 credibility by reference to, in the case of
11 Tracey Clarke and Timothy Jameson, their previous
12 inconsistent statements, and in the case of Atkinson,
13 the allegation. Yet Andrea McKee was tested, as we
14 know, at some length, as to her credibility by reference
15 to where she took her son.
16 Can you explain what practice there was about when
17 counsel would test witnesses by reference to other
18 matters?
19 A. Well, it's quite a long question.
20 Q. I am afraid so.
21 A. If you bear with me, I will try to unpack it. We have
22 had what I think is an advantage in Northern Ireland in
23 that both counsel and my professional colleagues can
24 consult with witnesses who are not expert witnesses.
25 I think there is a matter certainly that the previous
49
1 Attorney was examining for England and Wales.
2 The purpose of consultation could range from
3 examining the ambit of a witness' evidence or the
4 clarity of a witness' recall, or, indeed, whether or not
5 the witness can be viewed as being credible. It is part
6 of the test for prosecution, as you know, that the
7 prosecutor must make an assessment as to whether there
8 is credible evidence which can be adduced in support of
9 a prosecution and consulting with a witness may give
10 that opportunity of determining credit.
11 Now, I instructed, I believe, Mr Davison, in 1997,
12 to instruct Mr Kerr QC, who was my nominated senior
13 counsel at Belfast Crown Court, to confer with the two
14 witnesses whom you have named. He was there to gauge
15 the strength of their evidence.
16 In relation to the third witness whom you named,
17 I instructed Mr Simpson QC to confer specifically on the
18 issue of that person's credibility
19 Q. Yes.
20 A. I hope that is a helpful answer.
21 Q. It is. Thank you. As you said, it was a long question.
22 Can I revisit parts of it?
23 A. Yes.
24 Q. Firstly, in respect of Tracey Clarke and
25 Timothy Jameson, having instructed counsel to see them
50
1 in part at least to assess their credibility would it
2 normally have been the practice for inconsistent prior
3 statements to have been put to them?
4 A. If police have provided my service with inconsistent
5 prior statements, I have no doubt they would have been
6 furnished to counsel and put to the witness.
7 I am a little surprised that my service was not, as
8 far as I know, given the matters to which you refer, the
9 questionnaires.
10 Q. In relation to Mr Atkinson, as far as one can tell, no
11 consideration was given at all to consulting with him
12 prior to the Hobson murder trial to see whether he was
13 a credible witness. Can you comment on that?
14 A. I certainly did not give consideration to it. I cannot
15 answer for counsel, or, indeed, for my professional
16 colleague who had responsibility for preparing that
17 case. I can only, on this occasion, speak for myself.
18 Q. Could we look at Mr McGinty's witness statement at
19 page [81955]?
20 Have you had a chance to see this?
21 A. No.
22 Q. May I take you then to some material passages?
23 Page [81961]. Here Mr McGinty is talking about the
24 potential for using Mrs McKee in the trial of the
25 Atkinsons and others and the adjournment in
51
1 December 2003.
2 A. Uh-huh.
3 Q. Can I pick it up in paragraph 18?
4 He says:
5 "When the case was adjourned on 22nd December 2003
6 it was done so on the basis of the information
7 Andrea McKee had given to DC Murphy about her son being
8 ill and her not being able to leave him to travel. It
9 had been reported that the child had an ear
10 infection" -- to be fair to him, said he has got that
11 wrong, but go on to what he says is right, "mumps,
12 swollen testes and was at risk of fitting. I have been
13 shown two witness statements by Dr [blank], a GP at
14 Strathmore medical practice in Wrexham, dated
15 24th December 2003 and 30th December 2003.
16 "In my view, whilst these statements indicate that
17 the child was indeed unwell with an ear infection and
18 the possibility of mumps, they do not support the degree
19 of illness claimed by Ms McKee. Specifically, the first
20 statement records that the doctor saw the child on the
21 day Ms McKee was to attend court (22nd December).
22 Whilst the doctor confirmed an ear infection in both
23 ears there is no mention of the other serious
24 complications put forward by Ms McKee."
25 Going on, 19, and 20:
52
1 "Given that what Mrs McKee had reported was an ear
2 infection, mumps, swollen testes and the risk of
3 fitting, and this had been passed on to the court,
4 neither the court nor the defence, in my view, could
5 have been satisfied with the adequacy of these
6 statements. It was inevitable that the prosecution was
7 required to seek further evidence to support the account
8 she had given for her reason not to attend. By making
9 the claim she did, the issue became, not whether her
10 child was ill, but whether she had been truthful in her
11 explanation for her failure to attend court."
12 Again, I need to be clear here that I asked
13 Mr McGinty whether he was dealing here with his view as
14 of March 2004, when he was advising the Attorney on
15 this, or whether this was a view he had now reached in
16 the light of materials now available to him. It is the
17 latter. So partly this is reconstruction, if you like:
18 "20. The issue for the prosecution is whether it
19 can put to the court an honest explanation for its main
20 witness having failed to attend to give evidence. The
21 prosecution needed a medical certificate or other
22 evidence to support the account it had forwarded to the
23 court on 22nd December based on what Mrs McKee had said,
24 which was that the child had mumps, swollen testes and
25 a risk of going into a fit."
53
1 Then going over the page, [81962], just the top
2 paragraph:
3 "Having sought evidence from the doctors, it was
4 clear that other evidence would be required to support
5 the account given to the court. Further enquiries were
6 made of Mrs McKee. The result of those enquiries and
7 the investigation that followed only indicated that
8 Mrs McKee was prepared to put forward a complex and
9 untruthful account in an attempt to support what she had
10 said earlier about the seriousness of her child's
11 illness and the reason why she had been unable to attend
12 court."
13 So what you get, if I can paraphrase from that, is,
14 there having been reasons advanced to the court on
15 22nd December, some statements from GPs which followed,
16 which did not at least fully support what had been said
17 to the court, there was an onus on the prosecution to
18 get better medical evidence about the degree of the
19 child's illness, that there was something of a shift
20 when she started talking about Pendine, and the focus
21 moved on to that, and she lied about Pendine.
22 That's essentially what that is saying. Do you
23 follow?
24 A. Yes, I understand what you are saying.
25 Q. Do you accept that it was for the DPP's office to get
54
1 the better evidence or at least to direct the better
2 evidence.
3 A. May I say, first of all, when I responded to your
4 enquiry, had I seen this -- I was referring to this on
5 the screen. I have seen this statement before. I just
6 want to make that clear in case there is any
7 misunderstanding.
8 I think it was inevitable in the circumstances of
9 this case that, when the prosecution found that the
10 account given by the witness to, I believe,
11 Detective Constable Murphy on 21st December, when it was
12 found that it did not sit entirely with the existing, as
13 it were, medical evidence, it was inevitable that police
14 take forward enquiries to determine whether there was
15 evidence that could support the witness in her account.
16 Q. Thank you. That's subtly different to what I asked,
17 because what I was asking was whether you accepted there
18 was an onus on the DPP's office to do that?
19 A. Well, I understand your question, but in terms of taking
20 forward enquiries, I think you will understand these are
21 matters for police to take forward. It would be
22 inevitable, in an issue of this type, that the
23 prosecutor and police would be working closely together,
24 but the nature -- the manner in which the enquiry would
25 be taken forward would essentially be for police.
55
1 THE CHAIRMAN: Would the prosecutor tell the police what he
2 wanted to be informed about?
3 A. Yes.
4 MR UNDERWOOD: Thank you. If we look at page [33991], we
5 see notes of a meeting at which Mr Morrison and
6 Christine Smith consulted with Andrea McKee on
7 9th January 2004.
8 Are you aware of whether you saw these notes in
9 early 2004?
10 A. No. I have no recollection of that, no.
11 Q. Thank you. Can I just ask you then to have a look at
12 this:
13 "Andrea asked by Christine Smith to relate history
14 of son's illness:
15 "Stated:
16 "He started being unwell from start of December.
17 I think it was all coming from MMR injection which he
18 had a few months back -- his neck swoll up. Doctor said
19 it was a good thing. Showed vaccination working and his
20 body was fighting infection. The swelling went away
21 then neck started swelling again at start of December.
22 Child had not been well for a good couple of months.
23 "He was off nursery.
24 "I was off college as I had tonsillitis. I think it
25 was second week in December - I saw [blank]. I was off
56
1 college for two weeks. Saw doctor in early December.
2 He said child had the mumps. At that time, Amoxicillin
3 was prescribed. Five-day course. Child spat most of it
4 out. Antibiotic did not help. Went back to doctor
5 again - second visit - at surgery. Different antibiotic
6 given. Then [blank] paid house visit. I was still not
7 well. He prescribed nose drops and third antibiotic.
8 Doctor was worried about swelling of his testicles -
9 orchitis, were swollen before, said it went along with
10 mumps, but was not too dangerous because he had had MMR.
11 Visit was some time after second week in December.
12 Doctor said I had to be more forceful in giving
13 medicine. Child had lost weight and was to be given
14 sugar drinks with calories in them.
15 "Wednesday or Thursday of second week that I was
16 off.
17 "Taking medicine. Night when temperature was very
18 high - I didn't know whether I could give Calpol as well
19 as antibiotics. Went to late-night surgery.
20 "I phoned surgery and I go direct to late-night
21 surgery. Bounces on automatically. Redirected to
22 Pendine Park Nursing Home/doctor's surgery."
23 So what we see there is when Mrs McKee was asked
24 about the detail as a result of these police
25 investigations, she said a lot about what had gone on
57
1 between her and her GP and what the GP had told her. It
2 goes on, to be fair, about the dealings with Pendine,
3 but, if I may say so, they really show that she went to
4 Pendine because she was concerned about whether she
5 could give Calpol at the same time as antibiotics.
6 Bearing that in mind, would you have expected
7 investigations to be conducted with the GPs?
8 A. I think we have to go back to the beginning and take
9 into account where the court was on the adjournment. My
10 understanding -- and clearly I was not court -- was that
11 the court was informed by counsel as to the matters
12 which the witness had informed Detective Constable
13 Murphy and they were the three matters which you
14 mentioned at the beginning of this area.
15 The medical area which was forthcoming from the
16 surgery did not fully reflect on what the witness was
17 saying and, in those circumstances, I think it was
18 reasonable for the police to seek to obtain evidence
19 from the doctors
20 Q. Yes. Two things out of that. Were you aware that the
21 GP's records at Wrexham were so poor that, of the two
22 visits prior to 22nd December in that month, one was not
23 even recorded?
24 A. No, I was not aware of that, nor am I at this point.
25 Q. But -- again, I don't want to be unfair at all.
58
1 I appreciate you have not even been shown this document,
2 or were not shown this document at the time, but looking
3 at this document now, bearing in mind this was what was
4 being said on 9th January, and bearing in mind that the
5 GP's records were, to put it politely, less than
6 perfect, would you not have expected somebody to go back
7 to the GP's surgery and say, "This is what she told us
8 was going on, including on the very day she was due to
9 give evidence, between the son and the GP. Can you
10 please give us a report?"
11 A. That was certainly one possibility I would not discount.
12 Equally, I would not discount an attempt to meet what
13 the witness was saying that police would go to
14 Pendine Park medical centre to obtain evidence which
15 would confirm her account.
16 Q. But she is not saying, is she, anywhere, that
17 Pendine Park could have said that the child had mumps or
18 swollen testes?
19 A. On this page, I agree with you.
20 Q. Or on the other pages, to be fair.
21 A. I accept that.
22 Q. What she was saying would support those two important
23 contentions was the GPs, wasn't it?
24 A. I am sorry. Could you repeat that?
25 Q. What she was saying would support those two important
59
1 contentions, mumps and swollen testes, was the GP's
2 surgery?
3 A. Well, the status of the evidence, as I recall, was that
4 the first visit to her own surgery was on 1st December.
5 Q. That's correct.
6 A. And the diagnosis, as I recall, was ear infection,
7 possibly mumps.
8 Q. Again, that's not quite what I asked. What I asked was
9 what she was saying was that the GP's surgery would be
10 the place to go to to get support for what she was
11 contending on 22nd December. Is that correct?
12 A. I am sorry. I have lost the ...
13 Q. So have I. I don't know why it has gone off the screen.
14 [33991]. You see, what she was telling Christine Smith
15 and Ivor Morrison here was, "The GP told me these
16 things. The GP did these things. The GP saw these
17 things. The GP made these prescriptions. Pendine dealt
18 with Calpol".
19 What I am asking is: does this not show that the
20 course of the direction after this should have been to
21 go back to the GP?
22 A. Certainly -- forgive me. I don't want to be asking
23 questions. It is not my role. I believe at that point
24 there was in existence two witness statements made by
25 Dr Barker. I think your observation is reasonable.
60
1 Q. Thank you very much. Can we look, please, at -- do
2 a split screen and have page [33919] up on one page and
3 [33914] up on the other? What we have here,
4 Sir Alasdair, is parts of two different documents. The
5 one on the left-hand side is a minute of Mr Morrison's
6 of 16th March 2004. Of course, if you want to see the
7 7 entirety of it, please say so.
8 What we have on the right-hand side is what we are
9 calling a running account kept by Mr Morrison of the
10 events of this prosecution, and I have the last page of
11 it up there. The reason I am showing you these two is
12 that these two documents were included in your
13 memorandum to Mr McGinty for passage to the
14 Attorney General on 18th March.
15 A. Yes.
16 Q. Amongst other documents. I just want you to comment, if
17 you would, on the final two paragraphs on the left-hand
18 side and paragraph 35 on the right-hand side. Again, as
19 I say, if you want to see more of these documents,
20 please say so.
21 Looking at the left-hand side, 16th March,
22 Mr Morrison was saying:
23 "While the Pendine Park issue is not a matter which
24 is directly relevant to the essential evidence in the
25 prosecution of Atkinson, Atkinson and Hanvey, it
61
1 provides a basis upon which the defence will attack her
2 credibility which, without doubt, will be critically
3 damaged.
4 "The prosecution depends upon the evidence of Andrea
5 [blank] not only to prove that the present defendants
6 committed the offences alleged, but also to prove that
7 the offences were committed at all. In view of the
8 threadbare state of her credibility, there is no longer
9 a reasonable prospect of convicting any of the
10 defendants of the offences with which they are charged.
11 In reaching this conclusion, I have also considered
12 whether there is any possibility of proceeding with the
13 case without calling Andrea McKee as a witness."
14 He goes on to conclude there is not.
15 So, on 16th March then, what he was telling you was
16 that, in his opinion, whilst Pendine Park was not
17 directly relevant to the essential evidence, it had such
18 an effect on Andrea McKee's credibility that a jury or
19 judge was unlikely to accept her evidence on the
20 essential component. Does that follow?
21 A. Yes.
22 Q. On the right-hand side, on 18th March what he was
23 writing to you is:
24 "The case is due to be mentioned again in
25 Craigavon Court tomorrow, 19th March 2004, before
62
1 [blank]. In the absence of satisfactory evidence
2 supporting the information given to the court on
3 22nd December 2003 about the nature and seriousness of
4 Andrea's son's illness, it is probable that [the
5 magistrate] would be unwilling to allow the proceedings
6 to proceed further. If the views expressed in
7 Mr Simpson's advices are accepted, there is no basis
8 upon which the prosecution might seek to persuade him
9 that further proceedings would be viable."
10 A. Uh-huh.
11 Q. Now obviously there is a dissonance between those two.
12 How do you read those two?
13 MR EMMERSON: I do apologise for interrupting. I think it
14 is the second time the suggestion has been made there is
15 a dissonance between those two paragraphs without
16 reference to paragraph 34.
17 Paragraph 34 refers back to the document of
18 16th March and indicates that his concurrence in the
19 substance of Mr Simpson's opinion which was as to the
20 relevance of credibility, as to relevance of the lies
21 to the outlying issues of credibility on the main issues
22 in the case -- in other words, the comparison is between
23 paragraph 34. Paragraph 35 is a separate comment.
24 THE CHAIRMAN: Well, I hear you. I think Mr Underwood is
25 entitled to ask the witness about this point.
63
1 MR EMMERSON: I have no objection to the question being
2 asked. I simply think, if I may respectfully say so, it
3 ought to be asked fairly, which is looking at the two
4 together.
5 Paragraph 34 is the one that equivalates to the
6 passage on the left, not paragraph 35. Paragraph 34 is
7 in terms referring back to Mr Simpson's advice and
8 indicating what the content of the 16th memo was
9 intended to mean.
10 MR UNDERWOOD: I am asking about the contrast between
11 paragraph 35 and the minute of the 16th.
12 How did the contrast between those two strike you at
13 the time? Can you recall?
14 A. Again, I am sorry for asking a question, but was the
15 document [33914] a memo to me or some form of rolling
16 account?
17 Q. It was a rolling account but you included it in your
18 briefing to the Attorney, so I take it as something in
19 between the two.
20 A. Thank you.
21 Q. Do you recall whether you considered the juxtaposition
22 of these two at the time?
23 A. No.
24 Q. What we have been told now by Mr Morrison is that he
25 meant this. Firstly, in his view at that time, he has
64
1 told us, he thought the magistrate would throw it out on
2 the next day, but if he didn't, then you would lose
3 the trial anyway.
4 A. Well, I agree with you that on the second document, at
5 paragraph 35 he is expressing a view that the magistrate
6 would be, as he writes, unwilling to allow proceedings
7 to proceed.
8 That was not an issue in my mind and I doubt myself
9 whether the magistrate would be able to make such
10 an order as an adjournment
11 THE CHAIRMAN: That's the view I have expressed.
12 MR UNDERWOOD: That's what I wanted to get to. The
13 operative reasoning, as far as you were concerned then,
14 was what was in the minute of the 16th. Is that fair?
15 A. What I was plainly accepting at that time was a decision
16 that I was minded to take. Mr Morrison's views, as
17 expressed in the minute of the 16th, were relevant, and
18 his rolling record I thought provided a reasonably
19 helpful overview for the Attorney's office.
20 Q. Could we have a look at page [20098], please? This is
21 the frontispiece of the transcript of the proceedings in
22 which the McKees pleaded guilty. Have you seen this
23 before?
24 A. I have seen it. I haven't studied it.
25 Q. Perhaps we could just have a fairly brief look at it.
65
1 On the next page -- just forgive me a moment.
2 If we pick it up in the second paragraph, [20099]:
3 "In the early hours of 27th April 1997,
4 Mr Robert Hamill was attacked in Portadown town centre.
5 As a result of the injuries he sustained, he died on
6 8th May 1997. A number of persons were involved in this
7 attack and one of those suspected was at the time
8 a boyfriend of a niece of Mr McKee and she was also in
9 the town centre on the night in question and saw the
10 attack there.
11 "Amongst the police attending at the scene at that
12 time was a full-time reserve police officer. The
13 defendants at this time were married and living in the
14 Craigavon area and they owned and ran a gym teaching
15 martial arts. They had become very friendly with this
16 reserve police officer and his wife and that was through
17 the fact that the reserve officer's daughter was
18 a member of this gym and both couples visited each
19 other's homes and attended social events and went on
20 trips together in connection with the gym."
21 Going over, [20100]:
22 "After the attack on Mr Hamill, information came to
23 the attention of the police that this reserve constable
24 had made an early phone call to the home of the
25 suspected attacker, namely, the boyfriend of the
66
1 defendant's niece, advising him to dispose of the
2 clothing that he was wearing earlier. Indeed, if your
3 Honour pleases, might I say at this stage that Mrs McKee
4 played a significant in ensuring that this information
5 came to the attention of the police and at one stage
6 accompanied the person to the police station.
7 "As a result of this information coming to the
8 police notice, the reserve constable was interviewed by
9 the investigating detective. However, he denied making
10 the phone call throughout that interview. The police
11 were able to establish that the phone call in fact had
12 been made from his telephone to the home of a person
13 suspected. The reserve constable (inaudible) and
14 recognised that it had serious consequences (inaudible),
15 so far as he was concerned, and so he got Mr McKee to
16 take responsibility for making the phone call, saying
17 that he, Mr McKee and Mrs McKee stayed over at his home
18 on the night of the attack with his wife. The next
19 morning the reserve constable's wife (inaudible) and he,
20 Mr McKee, thinking that his niece would also be in the
21 town centre, was concerned for her safety and therefore
22 rang the suspect's home, the boyfriend, to enquire about
23 her safety.
24 "Mrs", overleaf, [20101], "McKee was told that she
25 was needed to support his account and, accordingly,
67
1 Mr McKee made a statement to the police, on 9th October
2 1997, and Mrs McKee made her statement corroborating
3 what her husband had said on 29.10.97 and added that, in
4 fact, it was her who gave him the number to call.
5 "As a result of these two statements coming to the
6 police, the particular investigations which the police
7 were involved in were brought to an end. Later, your
8 Honour, the marriage of Mr and Mrs McKee broke up and
9 the gym was closed and the defendants went their
10 separate ways, Mrs McKee moving away from
11 Northern Ireland, and it wasn't until June 2000, when
12 the police visited Mrs McKee, that the situation
13 changed. She then told police that she had not stayed
14 at the home of the reserve constable on the night in
15 question, that the Reserve Constable spoke to her
16 husband and asked him to cover the phone call that he,
17 the reserve constable, made to the home of someone
18 suspected of involvement in the attack and that
19 Mrs Hamill was asked to support that story.
20 "Later, on; 25th October 2000, Mrs McKee made
21 a further statement to police basically elaborating on
22 what she had said on 20th June and reiterating that the
23 reserve constable made it known to Mr McKee that he
24 needed someone to take responsibility for the phone call
25 from his home to the suspect's house and that a meeting
68
1 was arranged in the reserve constable's house to
2 prepare", overleaf, [20102], "a story, and the reserve
3 constable came up with the story about them staying over
4 at his house (inaudible) and Mr McKee was then to say he
5 rang and asked about his niece's safety.
6 "In April 2001, Mrs McKee was formally interviewed",
7 and by that I think it means under caution for the first
8 time, "about the offence of providing false information
9 and she agreed under caution that the statement she made
10 on 29th October 1997 was false. It was made up by the
11 reserve constable. It was totally untrue and she
12 regretted making it. She knew of the attack and later
13 heard there was a phone call from the Reserve Constable
14 to the boyfriend's home, ie Mr McKee's niece's
15 boyfriend, and that she had (inaudible ) when she told
16 the police about the phone call. She then repeated the
17 request made to her to give the false information by the
18 reserve constable, and while (inaudible) she did it to
19 support her husband.
20 "Mr McKee was also visited by the police in
21 June 2000, but he told them at that time that the
22 position was still the same, that he had in fact stayed
23 over at the police officer's house. He was interviewed
24 on 14th April 2001 for providing false information and
25 in the course of that interview he admitted that, in
69
1 fact, he had made a statement which was false, that he
2 had not stayed in the reserve constable's house on the
3 date in question, nor had he made the phone call. He
4 said he was a friend of the reserve constable for
5 a number of years and he was asked to say", overleaf,
6 [20103], "that he had made the phone call and, because
7 he was a friend, and the only friend he had in
8 Northern Ireland, he said 'Yes'. He agreed to cover it
9 and to say he had made the phone call (inaudible) about
10 that matter, your Honour. All he said was that the
11 reserve constable wanted this done and he had decided to
12 do it. He said he had been drinking heavily at the time
13 and didn't realise the seriousness of it.
14 "It is the prosecution case, your Honour, that both
15 persons knew the reason why they were being asked to say
16 that Mr McKee had made the phone call was to give a
17 false alibi to the reserve constable knowing that he had
18 been (inaudible). Indeed, your Honour, they were aware
19 also, the prosecution say, that it would interfere with
20 investigations going on at that time. Those are the
21 facts, your Honour."
22 Did you understand the generality of the way in
23 which the Crown put the case and the basis on which the
24 pleas of guilty were made?
25 A. Reading here, yes.
70
1 Q. As of 18th March 2009 (sic), had you any reason to
2 believe that those pleas were entered on a false basis.
3 A. 2009?
4 Q. I am so sorry. 2004.
5 A. No.
6 Q. As of 18th March 2004, did you put your mind to whether
7 a jury or a Diplock judge would take a view at a trial
8 of the Atkinsons and Hanveys that those pleas had been
9 entered on a false basis?
10 A. Yes.
11 Q. Were you aware that Mr Morrison disagreed with you?
12 A. No.
13 Q. Would that have made a difference to your reasoning?
14 A. I would be grateful if you could repeat the first
15 question so I can follow the material.
16 Q. Were you aware that Mr Morrison disagreed with you about
17 the probability of a court finding that those pleas were
18 entered on a false basis?
19 A. He was postulating that a court would ...
20 Q. What I put to him yesterday --
21 A. I am sorry.
22 Q. No, no. Sir Alasdair --
23 MR EMMERSON: I hesitate to interrupt. There is obviously
24 a misunderstanding between the counsel and witness,
25 because the question and answer which immediately
71
1 precedes the proposition that there is a disagreement
2 does not support it, if Mr Underwood would look at the
3 transcript.
4 MR UNDERWOOD: What I was about to say was, when Mr Morrison
5 was giving evidence yesterday, I asked him whether, as
6 at 18th March, he took the view that a jury would
7 probably find that the pleas were entered on a false
8 basis and he said: no, they would probably not find
9 that.
10 A. Uh-huh.
11 Q. That, as I understand it, is different to the view you
12 took on 18th March. Is that correct?
13 A. No, I misunderstood your question.
14 Q. I am so sorry.
15 A. I apologise for that.
16 Q. That's probably my fault. Let's see if we can get it
17 clear, shall we?
18 As of 18th March -- never mind what Mr Morrison
19 thought for the moment -- did you put your mind to the
20 question whether a court would conclude that the plea of
21 guilty was probably entered falsely on the part of both
22 Mr and Mrs McKee?
23 A. I think that actually is a very difficult question for
24 me to answer at this remove. What I was seeking to do
25 was to reach a view as to whether or not the test for
72
1 prosecution was met in the round, and, in doing that,
2 I clearly would have to weigh the fact that Mrs McKee
3 had entered the plea and had been therefore convicted of
4 an offence of doing an act with intent to pervert the
5 course of justice. That would have been part of my
6 consideration.
7 Q. The key thing here really is this: a jury would have
8 had, on the one hand, that she had pleaded guilty to in
9 essence the very conspiracy -- I know the charge is laid
10 differently -- about which she was giving evidence.
11 A. Yes.
12 Q. And so had her husband.
13 A. Yes.
14 Q. And that, in order to acquit the Atkinsons, a jury would
15 have had to have a reasonable doubt about whether that
16 plea had properly been entered. Is that fair?
17 A. I am not certain whether that is so. I think, as
18 a prosecutor, what I am looking at is evidence in the
19 round. Can the prosecution present evidence which bears
20 a reasonable prospect of obtaining a conviction?
21 I am not certain that, in examining that, one would
22 be parsing it in quite the manner you are postulating
23 it.
24 Q. Just to alight on the reasoning process you have just
25 told us about, she had attended the police station with
73
1 her niece in May 1997, had she not --
2 A. 10th May.
3 Q. -- to put the niece forward to give this very account?
4 A. Yes.
5 Q. Not this very account; to give an account of the
6 tip-off. Correct? She had then, falsely, in your view,
7 given an alibi in October 1997. Is that correct?
8 A. She had provided an alibi then.
9 Q. You must have believed that that was a false alibi, must
10 you not, otherwise you wouldn't have believed her plea
11 to have been entered truly?
12 A. I am not certain as to the state of my knowledge in
13 regard to her accompanying her niece.
14 Q. I am sorry. I am on the false alibi. Because you
15 accepted earlier on that on 18th March 2004 you believed
16 her plea to have been entered properly.
17 A. Yes.
18 Q. It follows, does it, that, on 18th March 2004, you
19 believed that the alibi which she gave in October 1997
20 was false?
21 A. I don't think I took a view on that. There were three
22 witness statements which were at variance with the
23 account given by Tracey Clarke.
24 Q. So it was not a factor in your thinking then that she
25 had given a false alibi?
74
1 A. Well, what you are asking is -- I think what you are
2 asking is whether, when one examined the alibi
3 statements the following year, and comparing them with
4 what Tracey Clarke had said, whether one would have come
5 to a view that those alibi statements at that time were
6 false.
7 Q. The alibi did not have anything to do with
8 Tracey Clarke, did it? The alibi had to do with who
9 made the telephone call.
10 A. Yes, but the alibi was relevant to the allegation which
11 Tracey Clarke had made, I thought.
12 Q. All right. Then what happened was she was interviewed,
13 not under caution -- this is Andrea McKee -- on
14 20th June 2000, I think, at which she said the alibi had
15 been false. Yes?
16 A. Yes.
17 Q. You knew that. She was then re-interviewed again in
18 October, again not under caution, and again said the
19 same thing. Is that correct?
20 A. Yes.
21 Q. She then pleaded guilty. Is that correct?
22 A. Yes.
23 Q. She then made a statement under caution before pleading
24 guilty in which she accepted it. Yes?
25 A. Yes.
75
1 Q. She then pleaded guilty to it?
2 A. Yes.
3 Q. She then made a further statement --
4 A. Yes.
5 Q. -- saying the same thing, and she was consistent
6 throughout the statements of June and October 2000, the
7 statement under caution, the plea of guilty and the
8 further statement after the plea of guilty. Is that
9 correct?
10 A. Well, I accept the process. I can't comment on the
11 extent to which she was consistent.
12 Q. Because you didn't check?
13 A. I have not checked that, no.
14 Q. Wouldn't that be relevant?
15 A. Relevant to the issue of her credit, yes.
16 Q. So why didn't you check?
17 A. I have counsel instructed to advise me on that matter
18 and I have a senior professional colleague as well.
19 Q. Right. Did you check whether counsel had considered
20 those matters?
21 A. In the course of consultation with counsel, I have no
22 doubt that her account would have been examined.
23 Q. Sorry. Let me get that clear. In the course of
24 consultation with counsel you have no doubt her account
25 of her consistency over those years would have been
76
1 examined. Is that your evidence?
2 A. I would have expected counsel to draw to my attention
3 matters which were inconsistent.
4 Q. Yes, but wouldn't you have expected counsel to draw to
5 your attention matters which were consistent?
6 A. Yes.
7 Q. But he didn't, did he?
8 A. I am not going to try to recall something a number of
9 years ago. Forgive me, if -- I genuinely say that.
10 Q. That's all right, Sir Alasdair. I appreciate that we
11 grind slow and small.
12 Then she turned up to give evidence in October of
13 2003, didn't she?
14 A. She did.
15 Q. Then, on 21st December, she asserted her child was ill
16 with mumps, swollen testes, high temperature. That was
17 the position, wasn't it?
18 A. That's what she says.
19 Q. She then elaborated on that on 9th January 2004. Isn't
20 that the position?
21 A. There may have been some communication with police in
22 advance of that. I can't recall. Certainly there was
23 a consultation with her on the 9th.
24 Q. At that consultation, she elaborated in a way that would
25 have directed a reasonable person to make enquiries of
77
1 the GPs. Isn't that correct?
2 A. I have accepted that that would have been reasonable.
3 Q. And that wasn't done?
4 A. Police took it forward in a different direction.
5 Q. Yes. The consequence of all of this then, is this,
6 isn't it: she and her husband, having pleaded guilty to
7 arranging an alibi to cover a tip-off given to
8 a murderer in 1997, was regarded as a witness not
9 capable of being advanced because of something she said
10 about an out-of-hours clinic seven years later?
11 A. Yes.
12 Q. If you were faced with this same decision-making again,
13 would you reach the same conclusions?
14 A. I don't think that's a particularly fair question, but
15 if you are asking, looking back at the decision that was
16 reached, I, in all honesty, would say yes.
17 MR UNDERWOOD: Thank you very much.
18 THE CHAIRMAN: We will have a break now until midday.
19 (11.45 am)
20 (A short break)
21 (12.00 noon)
22 THE CHAIRMAN: Yes?
23 MR WOLFE: No questions.
24 MR O'HARE: I have no questions.
25
78
1 Questions from MR McGRORY
2 MR McGRORY: I think it falls to me, sir, if I may. As you
3 know, the questions I ask are on behalf of the Hamill
4 family.
5 Director, before I take you to the ultimate decision
6 that was taken in respect of the prosecution of Reserve
7 Constable Atkinson, I would like you just to elaborate
8 on some few things in your statement to the Inquiry.
9 If I may take you, please, to paragraph 16, which is
10 at [82037] of your statement, the bottom part of that
11 paragraph beginning with:
12 "The Director could ask whether an investigation
13 could be conducted in a particular manner but would only
14 do so if there was a proper basis for so doing."
15 You go on to say then:
16 "The involvement of Superintendent [Blank],
17 Superintendent [Blank] and Superintendent McBurney would
18 have led me to believe that the investigative strategy
19 had been carefully considered and approved at the level
20 of the chief constable."
21 Do you see that?
22 A. Yes.
23 Q. I can take it that what happened -- it was fairly rare
24 for police at chief constable -- at this level
25 certainly, with representations directly from the chief
79
1 constable's office to make contact with the DPP in the
2 early stages of an investigation?
3 A. I don't think I would agree with that. Over the years
4 there have been consultations at a very early stage
5 involving senior police from headquarters.
6 Q. Yes. I think you said that it may not -- it certainly
7 wouldn't have happened in every case, but if there was
8 a sensitive case, important case or high profile case,
9 then that is something which would occur?
10 A. Well, consultation could occur for a variety of reasons.
11 The two that you have provided are certainly two of
12 them. There may be cases of sensitivity. There may be
13 cases in which there are substantial evidential problems
14 and police wisely, at an early stage, would want to
15 confer, either with me, on occasions, or with some of my
16 senior colleagues.
17 Q. Of course, and what you took from -- as you say here,
18 from the fact that so many senior policemen were
19 involved at this stage is that the investigative
20 strategy, in your view, was something which was being at
21 least approved of or kept an eye on by very senior
22 police?
23 A. Yes. I would make a point at a consultation to enquire
24 on whose behalf you were here. I would say perhaps,
25 "Mr [Blank], are you here on behalf of the chief
80
1 constable?" or "Mr [Blank], are you here on behalf of the
2 chief constable?"
3 I would ask that question so I could take a view as
4 to the degree of supervision that was being taken at
5 a command level.
6 Q. Yes. Thank you. Moving on just to the following
7 paragraph, 17, you address the issue of the extent to
8 which your office had been kept informed about the
9 results of the examination of Reserve Constable
10 Atkinson's telephone records, telephone details.
11 A. Yes.
12 Q. You say in the very last sentence:
13 "It was open to police to inform my office at
14 an earlier stage that they had advanced their enquiries
15 by securing the telephone details."
16 What we know, Director, is that the details had been
17 sought as early as, I believe, 10th May 1997, but that
18 the results of them did not come through until perhaps
19 16th May, but in terms of any reference to the results
20 of that examination of the telephone records, it was
21 never conveyed to the office of the DPP until the
22 neglect file came in in February of the following year.
23 So what I think you are saying to us here is it was
24 open to the police to inform your office at an earlier
25 stage.
81
1 A. Yes. I think I said that in response to a question by
2 the Inquiry's interviewer in coming to prepare this
3 statement, yes.
4 THE CHAIRMAN: Can you remember now when you first knew of
5 them?
6 A. I think, subject to correction, we first became aware of
7 them in February 1998, when the complaint and Atkinson
8 file was received.
9 THE CHAIRMAN: Thank you.
10 MR McGRORY: Director, we know that on 13th May Mr Kitson
11 was consulted by Detective Chief Superintendent McBurney
12 and that he was made aware of the Atkinson situation.
13 He has a handwritten note to that effect. Are you aware
14 of that?
15 A. Well, I have obviously examined his handwritten note and
16 his manuscript note. His handwritten note bears the
17 name "Atkinson", and I think some comment about further
18 enquiries or investigations.
19 Q. At that juncture, at that early stage in the
20 investigation, it would have been very open to the
21 police, and indeed to those in your office who were
22 being consulted about this, to consider whether or not
23 Reserve Constable Atkinson should be investigated for
24 the offence of assisting offenders in the context of the
25 murder case.
82
1 A. Yes. I am not certain. I was not at that consultation.
2 If you are asking me on a hypothetical basis, yes.
3 Q. Had the police told anyone in the Director's office four
4 or five days later after the meeting with Mr Kitson on
5 13th May that, in fact, there was a positive result from
6 the examination of the telephone records that would have
7 had a bearing on how the DPP might have viewed
8 Mr Atkinson in the context of the murder case?
9 A. I don't know whether at that point the existence of
10 telephone records per se would have led necessarily to
11 that view.
12 I think perhaps what is underpinning your question
13 is whether or not it was reasonable for police to
14 investigate Reserve Constable Atkinson within the
15 context of the supervised investigation by the ICPC into
16 neglect.
17 Q. I will repeat the question, because I chose my words
18 carefully. What I asked you was, Director: had the
19 police given that information after 16th May, that is
20 something that Mr Kitson, or whoever in the Director's
21 office was dealing with the matter, would have taken
22 into account?
23 A. I am sorry. Forgive me if I do ask a question. Into
24 account for what purpose?
25 Q. Well, in terms of the conduct of the prosecution. We
83
1 have a situation where the police have had two very
2 quick meetings.
3 THE CHAIRMAN: You mean the prosecution for murder?
4 MR McGRORY: Yes. The prosecution for murder. My
5 apologies. That's the context in which I am asking
6 these questions.
7 THE CHAIRMAN: I think now Sir Alasdair has your question,
8 he will be able to answer it.
9 A. I would prefer if he would finish it. I want to be
10 absolutely accurate.
11 THE CHAIRMAN: Very well.
12 MR McGRORY: What I am suggesting to you, Director, is that
13 we are in the early stage of a murder inquiry and the
14 DPP has been informed at the very least about the state
15 of the evidence as it was on 12th and 13th May.
16 Do you agree with me so far?
17 A. Looking at the minute of 12th May, I don't see that
18 there was a reference to Reserve Constable Atkinson.
19 You are certainly correct in relation to the meeting of
20 2nd May, at which I wasn't present, but Mr Kitson was,
21 as was, I believe, Mr Junkin.
22 Q. But the meetings must have had some purpose, Director,
23 and one of the purposes those meetings had was so the
24 police could hear what it was the prosecutor would have
25 to say about the direction of the case at that stage?
84
1 A. I agree with you it is difficult to divine from
2 the minutes what the purposes of the meetings were.
3 Looking at it as carefully as I can, I think the
4 first meeting appears to be a briefing with the then
5 deputy.
6 I think the second meeting appears to be that, but
7 with a mix of raising as issues certainly bail
8 applications and the concerns that police would have had
9 if the defendants were granted bail, and, secondly,
10 I believe concerns that they had as to the nature and
11 extent of the medical evidence.
12 Q. Yes, but your office has had to seek the remand of those
13 who were charged with the murder?
14 A. Yes, indeed.
15 Q. Yes, indeed. So it had to have a view on the direction
16 in which the prosecution was going at an early stage?
17 A. Yes, of course. We could not seek, for example, further
18 remand unless there was a reasonable possibility of
19 connecting an individual with an offence.
20 In that sense, that was probably where the
21 prosecution was also facilitating police by providing,
22 I hope, prosecutorial advice which would assist them.
23 Q. Indeed, it is reasonable to suggest that part of the
24 prosecutorial advice that might have been given would be
25 in respect of whether or not Reserve Constable Atkinson
85
1 could be included as a co-defendant with those who had
2 by then been charged with murder?
3 A. There may well have been an opportunity for that
4 discussion, yes.
5 Q. And that, therefore, those officers in your department
6 dealing with the matter would have considered the
7 relevance of the results of the telephone trawl?
8 A. We are speaking hypothetically, but if the issues were
9 brought to their attention, they would be bound to
10 think, "What is the significance of this?", etc.
11 Q. Moving on, Director, just, please, to the next
12 paragraph, paragraph 18, in which you say towards the
13 bottom of page 6:
14 "This is a matter which should have been drawn to
15 [your] attention, but was not."
16 Now, what is being referred to here is the
17 information that, in fact, Mrs McKee was, in fact, the
18 person who introduced Tracey Clarke to the police and
19 who sat with Tracey Clarke while she conveyed the
20 information about Reserve Constable Atkinson to
21 Inspector Irwin -- not to Inspector Irwin -- to police
22 officers. I don't need to mention their names.
23 She was also the person who had, in fact, spoken to
24 Inspector Irwin a day or so before in a meeting in
25 a graveyard and had, in fact, told him what
86
1 Tracey Clarke was saying: (a) about what she had seen;
2 and (b) about what Hanvey had told her in respect of
3 Atkinson.
4 Now, what you say here is:
5 "This is a matter which should have been drawn to
6 our attention, but was not."
7 Now, what I want to suggest to you is, had your
8 department been given this information, it would have
9 been relevant in two respects. When the neglect file
10 did come in in February 1998, those dealing with it in
11 your office might have had a view of the recommendation
12 for no prosecution, had it been given that information.
13 A. No prosecution of?
14 Q. In respect of the neglect file.
15 A. In respect of the neglect file. There is no doubt in my
16 mind that police were remiss in not reporting what was
17 relevant, highly relevant, information.
18 Q. Thank you. The second sense in which that information
19 might have been helpful to your office, Director, is, of
20 course, in considering the issue which I have referred
21 to of the extent to which Reserve Constable Atkinson
22 might or might not have been included as a defendant for
23 assisting offenders along with those charged with the
24 murder?
25 A. That may well have been the position.
87
1 Q. But, of course, your office did not know of it?
2 A. Yes. That's quite right.
3 Q. Now, Director, I want to move on to the question of the
4 decision in 2004 to withdraw the prosecution of Reserve
5 Constable Atkinson and others. I suppose it is fair to
6 say in the immortal words of President Truman, Director,
7 "the buck stopped with you", didn't it?
8 A. Yes. I am privileged to be in that position.
9 Q. I think you have been very frank in your statement in
10 saying that this was your decision for which you
11 ultimately had responsibility.
12 A. Of course, but I was also responsible for other
13 decisions taken on my behalf, whether by my own
14 professional colleagues and at times by counsel, as you
15 know.
16 Q. Indeed. There are a number of details about the manner
17 in which you arrived at your decision that I would want
18 to draw your attention to.
19 Dealing, first of all, with the role of the Attorney
20 General in terms of his supervisory capacity, you, of
21 course, constitutionally are independent?
22 A. Yes. I am independent briefly, but subject under the
23 present arrangements to the superintendent and direction
24 of the Attorney, and there is a further phrase that I am
25 responsible to the Attorney for the due performance of
88
1 my functions. So it's a pretty complete bind that
2 allows the Attorney to be responsible to Parliament.
3 Q. But, of course, the Attorney's views in certain cases
4 need to be sought, and in this case they were sought.
5 A. In certain cases, one would wish to take the Attorney's
6 view, yes, of course. In other cases, one would want to
7 inform the Attorney as to what I was doing as Director.
8 Q. Do you agree in such circumstances, then, it is
9 important that the Attorney General has all of the
10 information accurately conveyed to him that he needs to
11 have?
12 A. It is certainly important that there is an ongoing
13 relationship with the Attorney's office whereby the
14 Attorney is kept informed. The Attorney, of course,
15 does not need, and cannot be expected, to have the whole
16 range of detail of every case put to him or her, as is
17 now the position.
18 Q. No, but the information he is given needs to be
19 accurate, Director.
20 A. Of course it needs to be accurate, yes.
21 Q. Would you look, please, at page [40221]?
22 Director, this is a memorandum to the Attorney
23 General. Over the page, [40222], it is dated
24 18th December, but I think it is written in hand that
25 that is an error, and it should be 18th March. The
89
1 significance of the date of 18th March, of course, is,
2 Director, that this is the day on which the decision was
3 taken --
4 A. Yes.
5 Q. -- to withdraw this prosecution, but if we return to the
6 first page of the document, [40221], in the second
7 paragraph it is stated to the Attorney:
8 "I do not repeat the facts here. McKee failed to
9 attend committal proceedings on 22nd December. The
10 defence agreed to an adjournment, providing the
11 prosecution on the next occasion provided evidence to
12 back the explanation given for McKee's non-attendance.
13 Having made the investigations set out in the summary,
14 it is clear that McKee's explanation for non-attendance
15 could not be believed."
16 The memo goes on to tell the Attorney:
17 "It is possible that the RM would then end the
18 committal proceedings tomorrow. Judging by the
19 sensitivity of this case and its history, I think it
20 more than likely that he would."
21 Now, you have already told us, Director, in answer
22 to questions from Mr Underwood that, in fact, that was
23 not your view?
24 A. Yes.
25 Q. So you accept that --
90
1 THE CHAIRMAN: Forgive me. Can you just remind me: whose
2 document is this?
3 MR McGRORY: It has been redacted, sir. It was brought to
4 my attention --
5 MR EMMERSON: It is Mr McGinty's briefing to the Attorney.
6 THE CHAIRMAN: By whom?
7 MR EMMERSON: Mr McGinty.
8 THE CHAIRMAN: I thought so.
9 MR McGRORY: I'm afraid it escaped my attention before
10 Mr McGinty made his escape from the witness box or
11 I might have brought it to his attention, but I am
12 drawing it to yours.
13 Do you agree that that is not an accurate
14 representation of the department's view as to what might
15 well was going to happen the next day?
16 A. I think it is reflective upon Mr Morrison's view which
17 was contained in the final paragraph of his minutes, or,
18 rather, rolling record, and I have little doubt that
19 that was furnished to Mr McGinty and that he has drawn
20 from that.
21 Q. What Mr Morrison has told us was he meant two things.
22 The proceedings might fall tomorrow. Then we have to
23 keep a view on the trial. In fact, I suggest to you,
24 Director, that there was no legal basis upon which the
25 proceedings could have fallen the next day.
91
1 A. I am not contending that there were.
2 Q. No. Okay. I would like, now, just to turn, Director,
3 to the intense period between 25th/26th February and the
4 day of 18th March, when you took the decision to
5 withdraw the prosecution.
6 On 26th February you had a meeting in your office at
7 9.00 pm with Ivor Morrison, Mr Simpson QC and the then
8 Senior Assistant Director, whose name escapes me, but in
9 any event, you gathered together at 9 o'clock that
10 evening on 16th February.
11 Do you remember that meeting?
12 A. If I could be shown a minute of it, I will try.
13 Q. Can I help you with that?
14 A. Please.
15 Q. The minute begins on page [33979]. Do you see the
16 heading there, just to refresh your memory, Director?
17 A. Yes. I am surprised at 9.00 pm. I am not certain
18 that's correct.
19 Q. Everybody commends your industry, if that is correct.
20 A. I don't claim false credit.
21 Q. I think this was prepared by Ivor Morrison, because if
22 you go over the page at [33980] --
23 A. Thank you.
24 Q. -- at the bottom of the page there is his name. Staying
25 on that page, Director, if we may, [33980], the third
92
1 paragraph -- first of all, we will deal with the second
2 paragraph:
3 "Mr Simpson expressed the view that Andrea McKee was
4 not credible on the question of whether or not she
5 attended the clinic on 19th December. While there was
6 no reason to doubt that she was telling the truth about
7 the main issue on which she was expected to give
8 evidence for the Crown, her credibility as a Crown
9 witness would nevertheless be damaged."
10 Now, just stopping there for the moment, Director,
11 at this point, Ivor Morrison and Christine Smith had, of
12 course, been dealing directly with the matter and had
13 travelled to Wales and had spoken to Andrea McKee, but
14 as of 26th February, Gerry Simpson had not spoken to
15 Andrea McKee about this issue.
16 A. I believe you are right.
17 Q. Indeed, you go on to direct him to do just that, but the
18 significant part of this paragraph I suggest is this.
19 While Mr Simpson expressed the view that she was not
20 telling the truth, there was no reason to doubt that she
21 was telling the truth about the main issue on which she
22 was expected to give evidence to the Crown.
23 So would you agree that that was never a matter that
24 was in doubt?
25 A. What I would say to you -- I am not trying avoid
93
1 an answer -- is, as a prosecutor, it is not for me to
2 determine truth. What I must do is determine whether or
3 not we can adduce evidence that is credible. That's my
4 function.
5 Q. Yes. Sorry, Director. Do you mind answering my
6 question? We can come on to that in a moment, if you
7 don't mind.
8 My question is: do you agree that nobody ever
9 doubted that she was telling the truth on the main
10 issue?
11 A. I think I prefer the way I put it in my minute and my
12 statement, that we have taken it to be a truthful
13 account.
14 Q. Yes. Moving on then to the third paragraph:
15 "The Director said that he had to be sure that he
16 had taken every ..."
17 Of course, to be fair to you, there is then doubt
18 expressed about whether or not she will be believed in
19 terms of her credibility, that it might be damaged by
20 Pendine, has been damaged?
21 A. Yes. I think that paragraph is an indication certainly
22 on my part, but I wanted every process taken to advance
23 the case.
24 Q. I am going to suggest to you it is more than that. What
25 you have suggested here:
94
1 "The Director said that he had to be sure that he
2 had taken every proper step to advance the case and he
3 expressed the view that, in all the circumstances,
4 Andrea McKee may remain credible on the main issue."
5 A. Yes.
6 Q. If I might say to you, that is a key point, that what
7 you are saying to those who around you are really
8 saying, "We think we have to withdraw this prosecution,"
9 is, "Hold on a minute here. She may still remain
10 credible on the main issue."
11 A. Yes. I don't really understand the implication of your
12 question, but at that moment, I was inviting counsel to
13 confer with her on the issue of her credit. I was
14 saying to counsel that she may remain credible on the
15 main issue. I was not shutting doors.
16 Q. No, and, of course, you then ask Mr Simpson, since he
17 was the only one amongst you -- not amongst you -- the
18 only one of those directly involved in this who had not
19 actually spoken to her about this that he should do so
20 and provide you with an opinion.
21 A. Yes. Mr Simpson you will recall, I am sure, had been in
22 the case for some time.
23 Q. Yes, of course.
24 A. He was counsel in the case. He had provided the seminal
25 physical advices upon which the prosecution was
95
1 initiated. He had advised on whether or not the test
2 for prosecution was met. He had advised on meeting
3 an abuse of process application and had directed proofs.
4 So his knowledge and commitment to the prosecution was
5 complete.
6 Q. Indeed he did. Do you agree with me, Director, that, at
7 this point, there are two questions which you needed
8 resolved to assist you in making your decision?
9 The first of those questions was: can we say
10 definitively that she is not telling the truth about
11 Pendine; and the second question: well, even if we
12 conclude that she is not telling the truth about
13 Pendine, does that damage the prospects of a conviction?
14 Those are the two questions that needed to be
15 uppermost in your mind?
16 A. I wouldn't -- I don't want to cavil about it, but
17 I would be putting the question in a perhaps somewhat
18 different way. I would be saying that, "Having regard
19 to the consultation, Mr Simpson, that you have held with
20 the witness, can you please advise me as to whether you
21 regard her as being credible, whether we can advance her
22 as a credible witness to give evidence at that trial?"
23 The question I wanted answered was: do you find her
24 to be credible, because that was central to the
25 application for the test for prosecution.
96
1 Q. Since you have already said that nobody doubted that she
2 was telling the truth in relation to the main issue in
3 the case, which is the false alibi, what you were trying
4 to assess was, if indeed she has told a lie about
5 Pendine, will she still be believed?
6 A. Well, firstly, if I may, I think I am reasonably
7 entitled to say that my terminology was that we have
8 taken it to be a truthful account. The issue of credit,
9 as you know, is a very complex issue and damage to
10 credit on a particular issue has a general effect on the
11 witness.
12 Q. Will you accept, Director, that Mr Simpson was
13 dispatched to do two things: to interview Andrea McKee
14 and inform you of his view of whether or not she was or
15 wasn't telling the truth about Pendine, firstly?
16 A. He was being instructed to consult with her and advise
17 me on her credit. Part of that would have to be
18 an examination of what did or did not occur at
19 Pendine Park medical centre.
20 Q. Thank you. The next step in assessing the likelihood of
21 her being believed by the jury would be in saying,
22 "Right. Okay. If she has lied to us about Pendine, and
23 if she lies about this on cross-examination" -- and
24 I suggest to you that's the only basis upon which she
25 could have lied about it -- "what damage does this do
97
1 our case?"
2 That's the next question.
3 A. Yes.
4 Q. Of course, in assessing that, Director, you then have to
5 consider quite a number of factors.
6 A. Yes.
7 Q. Among those factors, Director, would be the law on how
8 damaging a lie being told by a prosecution witness is to
9 the prosecution case.
10 A. One would have to assess the effect that that would have
11 on the trial process.
12 Q. Yes. As you have said, Mr Simpson in his earlier
13 opinion had conducted quite a detailed examination of
14 the jurisprudence in the context of an expected abuse of
15 process action on behalf of Atkinson --
16 A. Yes.
17 Q. -- and had concluded you could ride that one out.
18 A. Well, I have not read that for some time, but I assume,
19 as we were continuing with the prosecution up to that
20 moment, we must have anticipated that there was
21 a reasonable prospect of meeting an abuse of process
22 application.
23 Q. Of course, that's part and parcel of the decision-making
24 process in which you engage. We have some difficulties,
25 because in an ideal world no prosecution would have any
98
1 difficulty, but in reality they do.
2 A. Each prosecution is a reflection of human frailty and
3 human frailty will differ on an infinite basis.
4 Q. In terms of the law on the issue of witnesses who tell
5 lies, there are a number of key cases on this. I mean,
6 there is one in this jurisdiction which might be
7 well-known. There is the case of Sayers and Others,
8 which was otherwise known as the Crockard supergrass
9 case.
10 Does that ring any bells with you?
11 A. It does but I don't have the judgment with me.
12 Q. It was the judgment of McDermott J. He made a lot of
13 observations, which I am going to repeat to you, about
14 lying witnesses. These are general observations which
15 he made. I am not necessarily suggesting that you
16 should have gone to this case or necessarily known about
17 it, but they are fairly common sense observations,
18 I would suggest. What he said was this:
19 "At times, the authorities focus on the credibility
20 of the witness, and, at others, upon the credibility of
21 his evidence. In fact, it seems to me that though what
22 is important is a man's evidence rather than his
23 character, his character must be examined in order to
24 form a view as to whether or not what he says in his
25 evidence is likely to be credible. At the same time, it
99
1 is an elementary fact of life that a person of bad
2 character may give truthful and reliable evidence and
3 that a person of exemplary character may give false or
4 mistaken evidence."
5 In other words, what he is saying there is somebody
6 may tell lies, but what we have to look at is: what are
7 they saying about the specific thing?
8 Isn't that something you needed to factor into your
9 thinking?
10 A. I am sure you are right. I think from what I listened
11 to, Lord Justice McDermott was perhaps just commenting
12 on the state of humanity. I don't think it was of
13 particular -- I haven't got it in front of me.
14 Q. No. I am not asking you, Director, and I hope now --
15 I am not trying to wrong-foot you or to outsmart you by
16 quoting you law in the witness box that you haven't had
17 an opportunity to look at.
18 A. Thank you.
19 Q. What I am simply trying to do is -- these are
20 observations about life and about human conduct and
21 human beings --
22 A. Yes, of course.
23 Q. -- that a jury will have to weigh up eventually when it
24 looks at this.
25 A. Within the context of judicial guidance and supervision
100
1 as to the manner in which a criminal trial is to be
2 conducted.
3 Q. He also referred to in his judgment the leading English
4 case of R v Thorne and Others and the judgment of
5 Lawton LJ. He said this, of course:
6 "Just as a villain may be accepted as a credible
7 witness, so too could be a liar. It is history that
8 Saint Peter lied thrice, but few would doubt that he
9 could, if required, give credible evidence."
10 A. It is an unusual example, but I am not cavilling with
11 it.
12 Q. A nice example of Lord Justice McDermott's eloquence
13 perhaps, but what he is saying here is: look, in
14 assessing the human character, one has to take account
15 of fact that someone may tell lies. But what the court
16 has to do is decide: well, are they telling lies about
17 what we are being asked to decide?
18 That's the reality, isn't it?
19 A. It is a fascinating debate, Mr McGrory, but bringing it
20 back to the facts of the case that I am faced with --
21 I am faced with -- I apply the test for prosecution.
22 Part of the test for prosecution is a determination
23 as to whether or not the prosecutor can adduce credible
24 evidence. That's the issue I am looking at. That's the
25 issue I was looking at. I am looking at it in the
101
1 context, not only of what the witness has said, can say,
2 but bearing in mind that it is inevitable that cases of
3 this type are -- can be fragile.
4 The case starts with the witness being present --
5 the witness being present with Tracey Clarke when
6 Tracey Clarke gave her account. Then it moves to her
7 giving a contrary account which provides an alibi, and
8 then she proceeds from that alibi to give another
9 account. Then she gives incomplete or different medical
10 evidence. She then gives an account in addition to the
11 medical evidence about another time and another place.
12 When she is tasked with that, the story changes again.
13 Now, I am certain, Mr McGrory, that if you were
14 appearing for someone who was going to be the subject of
15 that person's evidence, you would be inviting me to do
16 exactly what I have described
17 Q. Well ... but in coming to your decision, Director, you
18 really need to go to -- you need to do a balancing
19 exercise. You need to go everything you have just said
20 to us about what lies she might or might not have told,
21 taking them at their worst, worst-case scenario, put
22 them in the scales, and then go to the other end of the
23 scale and put in all of those things which shore up the
24 evidence that you were really asking her to give and
25 that you still believed.
102
1 I want to draw your attention, Director, to -- well,
2 you agree that's the exercise you were engaged in?
3 A. I was just going to say I don't want to be pedantic, but
4 what I have said was, "We have taken to be truthful".
5 Now, you are quite correct in describing that
6 complex mix that a prosecutor must weigh and assess.
7 That is quite correct.
8 Q. You did that, did you?
9 A. Yes, I did that.
10 Q. Can we look, Director, at some of the things that would
11 have gone into the other side of the scale, please?
12 A. Certainly.
13 Q. These are things, of course, that were in Mr Simpson's
14 first opinion, which we have referred to.
15 It is an opinion dated 30th August 2002. The
16 relevant pages are to be found at pages [20050] and the
17 following page. Perhaps we could have[20050], please?
18 Will you take it from me that, rather than going to
19 the first page, this is what it is, Director?
20 A. Of course, certainly.
21 Q. At the bottom there, Mr Simpson goes at F, at the very
22 bottom:
23 "To corroborate Andrea McKee about the history of
24 association of the various persons."
25 This is his direction of proofs as to what proofs he
103
1 felt would have been available to him at the trial.
2 There is banking documentation relating to the
3 Tae Kwon Do club, including lodgement documentation
4 showing the Atkinson's association with the club.
5 There is then the evidence of the telephone calls
6 between the relevant premises.
7 Over the page, he talks about a witness who can
8 prove the relevant telephone details in terms of that
9 the calls were made, [20051].
10 He also raises the issue of a phone call from the
11 McKees to a taxi firm which would be available to the
12 prosecution to show, in fact, Andrea McKee was most
13 likely at home that night, as she was now saying she
14 was, and not at the Atkinson's. That would support that
15 if there was a phone call made from her home.
16 He talks about another Irene McKee, who was the
17 Call-a-Cab dispatcher. This is the same point
18 There is an issue about boxing, but he goes on at K
19 to talk about Atkinson's hours of duty, and that it
20 could be that indeed he would have been at home in time
21 to make the call.
22 That's another factor, isn't it; that Mr Simpson was
23 weighing in favour --
24 A. It's there, yes, yes.
25 Q. He goes on to say -- at M there is another point. Then
104
1 at N there is Hanvey's movement after the attack.
2 A number of people can give evidence about that.
3 He also drew attention in the opinion to the fact of
4 the plea, which we have discussed, at various length.
5 Now, Director, can you say whether or not
6 Mr Simpson's original opinion on the reasons why
7 Andrea McKee should be believed was revisited on
8 18th March or in the days preceding it?
9 A. I can't recall that, but I am certain that, firstly, he
10 would have had it in his own mind, and no doubt he was
11 asked that, but I return to my point. The opinion shows
12 the commitment of counsel to this prosecution and
13 underlines that when counsel, having seen the witness,
14 had come now to a contrary view -- not an easy decision
15 to take on his part or on mine -- it was in the context
16 of someone, an individual, who was behaving at the
17 highest professional manner.
18 Q. You see, we know that that opinion I have just referred
19 to was not sent to the Attorney.
20 A. Yes.
21 Q. There is no evidence that you reconsidered it at that
22 time.
23 A. You are right. I have no recollection of it and
24 I wouldn't strain to give evidence about it, but what
25 I do say is that the opinion was in existence. It was
105
1 clearly in the front of counsel's mind, and, when
2 counsel was advising, it was against a backdrop of the
3 position that he had adopted which permitted this
4 serious prosecution to commence.
5 Q. You see, Mr Simpson did not go into all those things
6 again in his second opinion. He may have just taken the
7 view that, "There is no point in me repeating my first
8 opinion. The Director has that".
9 A. Well, I can't go into his mind.
10 Q. No. If you would just look at his conclusion on the
11 second opinion, which is at page [33918], most of this
12 opinion, Director, I suggest is a history. His
13 concluding paragraphs between 17 and 18 are where he
14 settles on the issue as to whether or not the
15 prosecution should be withdrawn.
16 A. Yes.
17 Q. He has already expressed his view that she has lied to
18 him about Pendine, but at paragraph 18 he says:
19 "In the circumstances of this case, the prosecution
20 will be called upon to explain the adjournment which
21 resulted from her non-attendance on 22nd December. The
22 explanation given by Ms [name redacted] is untruthful,
23 in my view, in the light of the police enquiries. It
24 would be inappropriate to put this version of events
25 forward knowing that, as will inevitably happen, if she
106
1 goes into the witness box, she will give untruthful
2 evidence."
3 I am going to suggest to you there is an inaccuracy
4 in that paragraph of Mr Simpson's, which should have
5 been apparent to you. I am going to spell out what the
6 inaccuracy is.
7 The inaccuracy in that paragraph is that in the
8 context of the prosecution at committal there was any
9 obligation on the prosecution to, in fact, explain the
10 adjournment. This is in the context of the conduct of
11 the committal.
12 A. I think you are recognising that there are two things
13 here. There is the explanation which the prosecution
14 was under an obligation to provide the learned resident
15 magistrate in relation to the application to adjourn on
16 22nd December, and then there is an issue as to whether
17 or not one should put into the witness box a person whom
18 counsel believes not to be credible, and, in his terms,
19 what he writes is untruthful, having regard to the rules
20 and the code of conduct of the Bar.
21 Q. You see, there is a possible view here, Director, that
22 you, and possibly Mr Simpson and the Attorney, were all
23 of the mistaken belief that, in fact, on 19th March, the
24 issue of the adjournment might have been canvassed,
25 might have been something which could have affected the
107
1 conduct of the actual PI?
2 A. I think I made that point earlier, when I was being
3 questioned by Mr Underwood.
4 Q. Do you agree that that shouldn't have been a factor?
5 A. I am saying it wasn't a factor in my mind. I mean, as
6 an experienced practitioner, you know there are other
7 ways of securing the trial of individuals quite apart
8 from the normal process of a committal by a magistrate.
9 Q. You see, what Mr Simpson does next in paragraph 19 is he
10 goes from what he says in paragraph 19 to saying:
11 "The overall effect of her maintenance of the story
12 for which there is not a shred of corroboration is to
13 contaminate any evidence that she may give and
14 completely to undermine her general credibility."
15 Now, that's a big leap I suggest, Director.
16 A. I think that's his conclusion.
17 Q. Yes.
18 A. Whether it is a big leap I respectfully suggest is
19 a matter of opinion.
20 Q. What is without doubt, Director, is that that conclusion
21 is not reasoned in this opinion.
22 A. To a degree -- I don't want to take your time to go back
23 to the beginning of the opinion and go through it
24 sequentially paragraph by paragraph, but there was
25 a knowledge and awareness of the frailty of the evidence
108
1 which the witness was giving and that was the purpose of
2 inviting him to consult and advise.
3 I think it is fair -- and I am sure you will agree
4 it is fair -- that the parties involved in this were
5 aware of where the fault lines were, if I may describe
6 them as fault lines.
7 Q. To be fair to Mr Simpson, and I think I did suggest this
8 to him when he gave evidence; that it is not like he is
9 advising a lay client who is entirely dependent on him.
10 He is advising the Director of Public Prosecutions, whom
11 he would expect to have a grip on what had gone
12 previously and on the issues that needed to be weighed.
13 A. I hope so.
14 Q. Because what is absent from here is, of course, any help
15 to you in dealing with those issues that I asked you
16 about earlier in terms of, "Okay. So she is telling
17 a lie about Pendine. Well, let's put all this in the
18 scales and let's see, can we test this?" as you asked
19 him to do. "Might she still be believed?" There is
20 nothing here to help you, is there?
21 A. What he has done is set out a very clear view he has
22 formed of the witness. He is an experienced silk, as
23 you know. He had committed the prosecution through his
24 original advice, which you rightly identified as being
25 thorough, and he is now giving me what I had asked him
109
1 to do, his views of the witness.
2 Q. Of course, the Attorney himself, through Mr McGinty,
3 conveyed to you on the evening of the 18th his concern
4 about the effect of the plea, the original plea, and how
5 that needed to be weighed.
6 A. Yes.
7 Q. Did it occur to you that maybe you should go back to
8 Mr Simpson and have a discussion about this and tell him
9 that the Attorney had flagged that up?
10 A. No. Clearly it did not occur to me, because he had
11 answered the question which I had asked.
12 Q. Sorry?
13 A. I am sorry. I said -- I am sorry if that was not clear.
14 It did not occur to me to return to Mr Simpson, because
15 he had answered the question which I had asked.
16 Q. You see, in your statement you describe -- I don't think
17 I need revisit it specifically -- in the context of the
18 earlier case there was a disagreement between Mr Kitson
19 and Gordon Kerr, QC, about a specific issue, and you had
20 a meeting in your office about it and you teased it out
21 and you kicked it around --
22 A. Yes.
23 Q. -- and then you came to a certain view.
24 A. Yes.
25 Q. I have to suggest to you, Director, that that's the sort
110
1 of exercise that should are been engaged in on
2 18th March before that decision was taken to withdraw
3 this prosecution?
4 A. Well, if you want to return to the preparation of
5 a letter for the Attorney in response to a letter from
6 your clients through the Secretary of State, I am happy
7 to do so, but there was a difference between what
8 counsel in that particular case had advised on paper and
9 the views that I was receiving from my colleague
10 Mr Kitson on paper.
11 I was therefore trying to resolve whether my
12 colleague's account was correct and that counsel had in
13 effect moved on one or two issues as he had advised.
14 I think that, in fairness, is a somewhat different issue
15 and is not comparable.
16 Q. Well, the Attorney at least had raised with you, "Look,
17 this issue of the plea of guilty is something which
18 needs to be got over". Really, once the Attorney
19 General of the United Kingdom does that, there should
20 are been a pause: (a) Mr Simpson should have been asked
21 to review his opinion; and (b) there should have been
22 some discussion between you and him about that.
23 A. That is your view. I don't accept that --
24 Q. You don't accept that.
25 A. -- with respect.
111
1 Q. Director, you do -- you realise that --
2 THE CHAIRMAN: Mr McGrory, I see the time. Are you going to
3 be finished in a few minutes?
4 MR McGRORY: I am coming to my last question, sir.
5 THE CHAIRMAN: Very well then.
6 MR McGRORY: Director, you do realise that this Tribunal may
7 take a view as to whether or not you made the right
8 decision on 18th March?
9 MR EMMERSON: I am sorry. That is a question to which I am
10 bound to object as falling outside the terms of
11 reference.
12 THE CHAIRMAN: It is more accurate to say this Tribunal may
13 form its own conclusion about the veracity of
14 Andrea McKee.
15 MR EMMERSON: And indeed, may not take a view as to the
16 correctness of the decision.
17 THE CHAIRMAN: No, I understand that. Of course, we may
18 have to consider whether the Director was fully equipped
19 to make the decision, a matter of due diligence.
20 MR EMMERSON: I understand the position.
21 THE CHAIRMAN: Yes.
22 MR McGRORY: I have no difficulty with the proposition
23 expressed in that way.
24 THE CHAIRMAN: Well, I am afraid that is the position in
25 relation to our terms of reference.
112
1 MR McGRORY: Indeed.
2 In the event of the Tribunal taking a contrary view
3 to yours, Director, are you prepared to review your
4 decision and revisit whether or not Reserve
5 Constable Atkinson should now be prosecuted?
6 THE CHAIRMAN: I don't think that has any bearing on our
7 terms of reference. What the Director might or might
8 not do about it is not within our terms of reference.
9 MR McGRORY: So be it.
10 THE CHAIRMAN: 2.05 pm.
11 (1.05 pm)
12 (The luncheon adjournment)
13 (2.05 pm)
14 THE CHAIRMAN: Yes?
15 Questions from MR DALY
16 MR DALY: Sir Alasdair, I appear for Andrea McKee.
17 A. Uh-huh.
18 Q. Now, you have had suggested to you a number of positive
19 factors, if you like, which could have been put in the
20 scales in relation to weighing up the prosecution in
21 Atkinson and Hanvey.
22 Can I suggest to you also positive factors, from
23 a prosecutor's point of view, would have been McKee's
24 previous clear record, save for her involvement in this
25 matter?
113
1 A. Yes, that's certainly a relevant consideration.
2 Q. Would it have been highly relevant?
3 A. It would have been relevant.
4 Q. Her assistance to police and cooperation at all times
5 with police, would that have been a positive factor?
6 A. I think you are beginning to stretch a little at that
7 point. It was some time before Mrs McKee became of
8 consistent assistance, if I may put it that way.
9 Q. Well, can I suggest to you that from the moment she
10 assisted police by bringing Miss Clarke to their
11 attention and in for interview, that she was, in fact,
12 from 1997, from that period onwards, of assistance to
13 police?
14 A. Well, I have to respond to your question and I don't
15 like having to in part traduce an individual, but I find
16 that equate with the alibi statement that she provided,
17 which is not consistent with what you are putting to me.
18 Q. She subsequently corrected that. Isn't that right?
19 A. Well, to describe it as a correction may be a little
20 de minimis.
21 Q. Not only did she correct it, but, as we have rehearsed,
22 she pleaded guilty and received a prison sentence,
23 albeit suspended, for her role?
24 A. Factually, you are correct, but I am not certain that,
25 in seeking matters for her credit, to have provided
114
1 an alibi statement in those circumstances was
2 a particularly worthy thing to do.
3 Q. She subsequently corrected that position. Isn't that
4 right, Sir Alasdair?
5 A. Yes, I accept that, of course.
6 Q. And that is to her credit?
7 A. Yes.
8 Q. Can I suggest to you that she, herself, had nothing to
9 gain from her cooperation with police?
10 A. That may be. I'm unsighted as to what you may have in
11 mind on that.
12 Q. Well, there are some situations, aren't there, where,
13 for example, sentencing can be adjourned?
14 A. Yes.
15 Q. That wasn't this case?
16 A. No. It was certainly permissible to do it that way. We
17 have tended to do it the way we did it with your client;
18 that is to have her sentenced so she can present to the
19 court as not seeking some further benefit.
20 Q. There was no potential inducement or benefit towards
21 her, or for her, for taking part in these criminal
22 proceedings. Isn't that right?
23 A. Not that I am aware of.
24 Q. Would you have been made aware of any, had there been
25 any?
115
1 A. Well, certainly under the arrangements which I think we
2 have with police, if there was some financial benefit,
3 I would have expected to be told.
4 Q. Had she changed her mind in relation to acting as
5 a witness in the prosecution of Atkinson and Hanvey,
6 couldn't she have tendered a statement of withdrawal?
7 A. Certainly.
8 THE CHAIRMAN: She wouldn't even have had to do that, would
9 she?
10 A. No.
11 THE CHAIRMAN: She could just have said, "I am not coming"?
12 A. Exactly.
13 MR DALY: But that's not this case. Isn't that right?
14 A. It's not this case.
15 Q. Effectively, Sir Alasdair, we have the situation out of
16 the same set of facts that one person, Andrea McKee,
17 accepts her responsibility, pleads guilty and receives
18 a prison sentence suspended. Isn't that right?
19 A. Yes.
20 Q. Thereafter, she volunteers herself, through no benefit
21 to herself, as a Crown witness --
22 A. As a witness for the prosecution, yes.
23 Q. -- against those people who did not accept their
24 responsibility, who denied responsibility in the same
25 set of facts, the Atkinsons and Hanvey, and those who
116
1 denied their responsibilities, failed to accept their
2 responsibility, go scot-free?
3 A. Those others were not prosecuted.
4 Q. Would there have been some sort of public interest in
5 showing impartiality in this matter, do you think?
6 THE CHAIRMAN: I am not sure what you mean in the context by
7 "impartiality".
8 A. I am sorry.
9 THE CHAIRMAN: I was hoping counsel might clarify his
10 question.
11 MR DALY: Could you understand Mrs McKee's feeling aggrieved
12 out of the same set of facts that, where she accepts her
13 responsibility and proffers herself as of assistance to
14 the prosecution, that the others involved are thereafter
15 not prosecuted?
16 A. I understand exactly what you are saying, but I fail to
17 see how one cannot -- can be aggrieved in those
18 circumstances. She, at least, has the satisfaction of
19 knowing that she has entered a plea.
20 Q. She has that satisfaction?
21 A. Yes.
22 Q. You have suggested in your witness statement that where
23 there is a possible sectarian element in any case that
24 there is an added onus on a prosecutor to take
25 a prosecution?
117
1 A. What I think I was saying is I was giving an example of
2 a public interest consideration which was perhaps
3 particularly relevant in Northern Ireland. I was being
4 questioned by the Inquiry about differences either in
5 the evidential test or in the public interest, and
6 I opined that it may well be that, if an offence was
7 driven or motivated by sectarianism, that that would be
8 a public interest consideration that militated in favour
9 of prosecution, and that is what I intended to
10 demonstrate.
11 Q. Was that factor present at all in this case?
12 A. The tragic death of Mr Hamill had that factor associated
13 with it.
14 Q. By analogy, did the prosecution or purported prosecution
15 of Atkinson and Hanvey thereafter have that factor in
16 your opinion?
17 A. I don't -- I cannot attribute that particular motive
18 without perhaps further thought and reflection, but the
19 attack itself on Mr Hamill clearly had sectarian
20 overtones. The attempt to provide a cover-up, I am not
21 certain whether it, of necessity, had a sectarian
22 overtone.
23 Q. Can I suggest to you, Sir Alasdair, that there was no
24 appetite within your department for the prosecution of
25 the Atkinsons and Hanvey?
118
1 A. You may well suggest, but it is a question without
2 foundation. I think we have demonstrated our commitment
3 to the proper prosecution of offences by giving evidence
4 about what we have done.
5 Q. I am asking you particularly in relation to that
6 prosecution.
7 A. Well, if you wish an answer, which I think is
8 unnecessary, I would not accept what you have said.
9 Q. Could I suggest to you that, in fact, there was
10 an appetite not to proceed with the prosecution?
11 A. Again, I don't accept what you have said, and, quite
12 frankly, I think it flies in the face of the fact and of
13 the care that had been taken to initiate proceedings and
14 the care that was being taken to maintain those
15 proceedings until finally I took a decision that the
16 test was no longer met.
17 MR DALY: Thank you.
18 Questions from MR EMMERSON
19 MR EMMERSON: Sir Alasdair, can I ask you, first of all, to
20 explain in terms of principle how a prosecutor in this
21 jurisdiction should go about the task of evaluating the
22 relationship or relevance of lies told by a prosecution
23 witness in consultation with counsel and the DPP's
24 department and their general credibility on the main
25 issue about which it is expected that they will give
119
1 evidence? What is the process by which that evaluation
2 is made?
3 A. I think you raise a very difficult question and I think
4 the basis of the difficulty lies within the complexity
5 of the problem that is faced. Where a witness lies in
6 the face of a prosecutor in connection with the process
7 itself in which she is giving evidence, it raises
8 a concern as to whether her credibility, given the
9 closeness of the lie to the process that is in prospect,
10 whether her credibility becomes more to the centre of
11 the decision-making process.
12 I think it is necessary for the prosecutor to step
13 back and look at the witness in the round, recognising
14 that damage to a witness on a single issue can reflect
15 the credibility of the witness generally, and taking
16 into account that damage has a greater impact upon the
17 witness than perhaps matters which would enhance their
18 evidence.
19 Q. Now, you used the word "credibility". Can you help us
20 as to whether by "credibility" you are drawing
21 a distinction between your own assessment of whether
22 a witness, on their substantive evidence, is likely to
23 be telling the truth, and credibility in the terms of
24 the language in which you use it? Can you just explain
25 how you use the term "credibility" in that context?
120
1 A. I think prosecutors have to be very careful in
2 approaching decisions not to place themselves almost in
3 the manner of a jury or a judge determining the facts.
4 I think in looking at credibility and applying the
5 test for prosecution that we have, we are seeking to
6 come to a conclusion not about matters of truth which
7 are perhaps for the Tribunal of fact, but whether or not
8 an individual is capable of belief and in what
9 circumstances, if that arises, what will happen to the
10 prosecution.
11 Q. To what extent, if at all, does that involve predictions
12 as to the way in which questions of credibility are
13 likely to be exploited at trial?
14 A. Well, generally, I think it is an immensely difficult
15 analysis, and I must confess that I suspect that
16 prosecutors could differ in their outcome. Decisions on
17 prosecutions, from time to time people differ.
18 In looking at that, one would be aware very much of
19 the rules of evidence, the extent to which a judge will
20 permit cross-examination on the issue of credit, the
21 material that the defence will have because of the
22 disclosure by the prosecution of inconsistencies which
23 amount to, in the prosecution's view, lies, and taking
24 into account such things as a warning and the nature and
25 extent of that warning which one must seek to predict
121
1 and whether perhaps there is or is not independent
2 evidence which would be supportive of the witness'
3 evidence.
4 So it is a somewhat complex brew which I think the
5 prosecutor must examine and then step back and take
6 a decision, which, in these circumstances, will not be
7 an easy decision, but one that the prosecutor is tasked
8 to take.
9 Q. Do you regard the decision that was made in this case as
10 one which is within that category of decisions that
11 different prosecutors might have taken a different view
12 on?
13 A. I think in this case I would accept that.
14 Q. So does it follow from that that you regarded this as
15 a finely balanced judgment?
16 A. This was a finely balanced judgment, and it was
17 a judgment which I approached with caution.
18 Q. I am going to come just to look at how the judgment was
19 made in a moment or two, but just going back to the
20 question of fact, a number of factors have been put to
21 you by counsel weighing in favour of Andrea McKee's
22 credibility, and obviously one of those factors is the
23 fact that she had pleaded guilty herself to, in effect,
24 perverting the course of justice.
25 Now, just so that we are clear about that, it is
122
1 noted in the various memoranda that she would, by virtue
2 of that plea of guilty, have been treated as
3 an accomplice. Is that right?
4 A. Yes.
5 Q. Now, it is also noted that, really, without her
6 evidence, there was no case against any of the accused.
7 Is that right?
8 A. That is set out.
9 Q. So though there may have been other evidence in the
10 case, her evidence was central, so that, without it, the
11 case could not go ahead?
12 A. That was certainly the view of counsel and it was a view
13 with which I agreed.
14 Q. So whilst, on the one hand, it is suggested to you that
15 her plea of guilty is something which supported her
16 credit, did it have any other effect as regards her
17 status as an accomplice?
18 A. It sought to confirm that status.
19 Q. The effect of her being an accomplice would have been
20 what, as far as any prediction of the likely impact on
21 credibility at trial?
22 A. I think I said this morning, almost of necessity, cases
23 of this type are fragile and it is -- a witness who is
24 prone to lie is a witness whom I know a judge will be
25 cautious about.
123
1 Now, if you have a witness who is prone to lie and
2 the basis of the case, in effect, is that she was party
3 to lies, then, although clearly I am not a judge,
4 I would anticipate that a judge, in the exercise of his
5 or her discretion, would consider that a caution warning
6 for the jury was necessary, and, as this is a case where
7 there are lies, the judge might well be persuaded to
8 formulate a reasonably firm warning, and at the same
9 time pointing up the considerations to which I have
10 referred, whether there is independent support of
11 evidence.
12 THE CHAIRMAN: Can I be clear I understand that there is no
13 difference between the Northern Irish and English
14 jurisdiction? The warning in an English court would be,
15 "There can be dangers in acting without corroboration.
16 If there is no corroboration, you should bear that in
17 mind, but if you are satisfied so that you are sure, you
18 will still act on the evidence".
19 Is that the similar kind of direction a jury would
20 be given here?
21 A. I would say it is broadly similar, sir.
22 THE CHAIRMAN: Thank you.
23 A. We followed the English change, or reform, two years
24 later. Our jurisprudence tends to move in parallel.
25 THE CHAIRMAN: Thank you.
124
1 MR EMMERSON: We know on the particular facts of this case
2 it was concluded that Andrea McKee had lied to police
3 and to counsel and that when Mr Simpson provided her
4 with an opportunity to admit that this was not true, she
5 persisted with the explanation that they had given, and
6 that it was, therefore, anticipated that, if asked
7 questions about her failure to attend at trial, she
8 would again, on oath, tell lies.
9 Now again, final question, I wanted to ask you about
10 the general principles: is there a difference between
11 a situation where a witness has lied on an issue not
12 central to their evidence, but nonetheless untrue, and
13 a situation where they are continuing to lie in the
14 judgment of prosecutors and it is expected that they
15 will lie on oath if called to give evidence?
16 A. Well, two things. I think the latter example
17 exacerbates the difficulty of the problem which the
18 prosecutor weighs and does not serve to lighten the
19 considerations which will militate in favour of stopping
20 the case, but within that, within what you have said,
21 may I observe that, on the second occasion, not only did
22 the witness maintain her account, that account was again
23 developed in terms of who brought into the surgery the
24 child, who was undoubtedly ill but perhaps not there.
25 Q. Can I ask you to look at page [40221]? This is the
125
1 extract from Mr McGinty's note to the Attorney of
2 18th March. I just wanted to pick it up with you
3 halfway down from, "The key issue is whether":
4 "The key issue is whether, just because McKee has
5 lied about why she didn't turn up on 22nd December, she
6 may still be telling the truth about the main issue at
7 trial. I accept that one untruth does not necessarily
8 mean that a jury, properly directed, may not believe her
9 evidence - particularly since she has already pleaded
10 guilty to her part in the conspiracy. Of course, when
11 it comes to 'properly directed', there is little that
12 can be said by way of direction about credibility.
13 McKee is the key witness -- not only of what happened,
14 but the very fact that it happened at all. She is
15 an accomplice and her evidence will have to be given
16 subject to a warning ..."
17 Then he goes on:
18 "This puts her in a rather different position from
19 the usual run of witnesses."
20 Again, you would agree with that?
21 A. Yes.
22 Q. Can I just ask that you be shown the second page of that
23 memorandum, please, [40222]? I do apologise. Could
24 I revert to page [40221]? I am so sorry.
25 Mr McGrory put to you the second paragraph and
126
1 suggested that there was an error based on your evidence
2 in Mr McGinty's reasoning in what he said to the
3 Attorney. You can see the passage that he put to you
4 about four lines down:
5 "It is possible that the RM would then end the
6 committal proceedings tomorrow. Judging by the
7 sensitivity of this case and its history, I think it
8 more than likely that he would."
9 Now, you have told us you think that is wrong.
10 A. My own feeling is that, if the magistrate wished to end
11 the proceedings, then he should have set a date for
12 committal and, at that point, I think it would have been
13 open to him, if he had wished, to end the proceedings,
14 but I am not certain whether very much of substance
15 turned on this.
16 Q. This was, you said, no part of your reasoning. Is that
17 correct?
18 A. Yes.
19 Q. So does it follow from that it would have been no part
20 of what you said to Mr McGinty?
21 A. I don't recall the conversation, but, as I have
22 generalised as my evidence, that is a logical
23 conclusion. I think I observed this morning it was,
24 I~think, in the final, penultimate paragraph of
25 Mr Morrison's rolling history of the case.
127
1 Q. Yes. If we look at the following sentence:
2 "The Director accepts that he also has to bear in
3 mind whether, in the light of this evidence, he could
4 call McKee as a witness capable of belief in the main
5 trial."
6 Do you see that?
7 A. Yes.
8 Q. That's obviously looking forward past committal on the
9 assumption that the case would be committed. Is that
10 right?
11 A. Well, it bears that implication and indeed it raises the
12 question which the prosecutor had to answer.
13 Q. He goes on to say:
14 "He has concluded that he cannot ..."
15 Would you agree he has concluded that he cannot call
16 her as a witness capable of belief in the main trial?
17 A. I think at the moment of that being writing, in
18 fairness, I was in the position that I was informing the
19 Attorney that I was minded to do that, because I wished
20 the Attorney, if he wished to take it, to have
21 an opportunity of speaking to me or raising issues with
22 me.
23 Q. "... and so intends to pull the prosecution tomorrow."
24 A. I was minded to do so. I don't like the expression
25 "pull". That may be a little prissy.
128
1 Q. But the reason for pulling the prosecution as it is
2 described there is your assessment of whether she would
3 be credible in the main trial.
4 I wanted to ask you: is that the way in which you
5 explained the matter to Mr McGinty?
6 A. That must be the position, because the matter was not --
7 the matter was at a preliminary stage. If something
8 dreadful had happened before, if a magistrate had to
9 abandon committal proceedings -- this was not going to
10 happen in this case; this is theoretical -- but if
11 a magistrate had to abandon committal proceedings
12 because of violence or the like in his court, there were
13 other ways of securing the return of defendants for
14 trial, including the presentation of a judge's bill or,
15 here, the presentation of a bill on behalf of the
16 Attorney.
17 Q. Just so we're clear about what that means in practice in
18 this context, if, contrary to the view that you did
19 take, you had taken the view that Andrea McKee would be
20 credible at trial and that the case could and should
21 proceed, but if the magistrate had nonetheless taken
22 a decision, the consequence of which was to terminate
23 the committal proceedings, what could you then have
24 done?
25 A. Well, as I mentioned, if I disagreed with the
129
1 magistrate, I would either have asked the Attorney to
2 present a bill of indictment at the Crown Court or more
3 probably applied for a judge's bill. The latter is
4 preferable because there is a judicial determination,
5 because the Attorney's bill is an action on behalf of
6 the Executive and was probably subject to some doubt.
7 Q. Thank you. Can I ask, please, that you be shown
8 [33918]? This is a passage that Mr McGrory took you to
9 in the advice of Mr Simpson. If we can just look at
10 paragraphs 18 through to 20, please.
11 First of all, it was suggested to you that
12 paragraph 18 was just wrong, that, if the matter had
13 come back before the magistrate, there would have been
14 no need at all for the prosecution to provide any
15 explanation for the circumstances surrounding the
16 adjournment on 22nd December.
17 I mean, is that right, as you understood it?
18 A. Well, looking at the written material that we have
19 accumulated in relation to this, I don't accept that
20 that was right. It would appear to me that this was
21 a live issue which the defence were seeking to use for
22 their benefit, and that the prosecution would have to
23 seek to assure the magistrate as to the basis upon which
24 the original adjournment on 22nd December was made.
25 It seems to be a very lengthy process to get to that
130
1 point, but perhaps that is an indication of the issue
2 which the magistrate felt he was considering
3 THE CHAIRMAN: If the magistrate has no power simply to say,
4 "I am going to discontinue this case", if he looks into
5 the explanation offered to him before the witness is
6 called, he is in danger, is he not, of having to recuse
7 himself?
8 Isn't one way of dealing with it for the prosecutor
9 simply to say, "Material has been supplied to the
10 defence. It is not appropriate that I should say more
11 about her failure to attend at this stage. She will be
12 called and will be cross-examined about that"?
13 That saves the prosecution from putting forward
14 a story they don't accept and it saves also embarrassing
15 the magistrate by putting him in a position in which he
16 might have to recuse himself?
17 A. I think, if I may say, with respect, that's a very
18 ingenious approach. I think probably what would concern
19 me in the hypothetical situation which you describe
20 would be to anticipate how the defence would respond to
21 that tactic, if I may describe it as a tactic, and
22 I would be pretty confident that there would be little
23 or no cooperation from them.
24 THE CHAIRMAN: Well, I am sure they would protest. It
25 doesn't require their cooperation. The magistrate is in
131
1 charge of his own court. If he says, "Very well, that's
2 the course we must take", the defence must take it or
3 leave it.
4 A. I understand that response. I am not contending
5 differently, but it is an interesting approach.
6 MR EMMERSON: You had read Mr Morrison's summary of events,
7 hadn't you?
8 A. I had.
9 Q. So you had seen that, at the hearing on 27th February,
10 the magistrate had done just this: he had asked for
11 an explanation and expressed himself as very
12 dissatisfied with what seems to have been information
13 provided to him which was misleading?
14 A. Yes.
15 Q. Would you have expected the magistrate to ask for
16 an explanation?
17 A. I think it was in everyone's mind that we would be
18 seeking to assure the magistrate that we had acted
19 properly and with propriety in seeking the adjournment,
20 and, if there was a difference between what counsel said
21 on the 22nd to what the evidential position then was,
22 that that should be explained.
23 Q. I mean, whatever course a hypothetical magistrate had
24 open to them, this magistrate was asking for
25 an explanation, was he not?
132
1 A. He was, and it was a matter which the defence were
2 obviously supporting.
3 Q. If counsel had turned up at court armed with the final
4 position about Pendine following Mr Simpson's
5 consultation, and the magistrate had taken up where he
6 left off on 27th February and had said, "What is the
7 position about this adjournment? Was the information
8 provided to the court fully accurate? What have the
9 prosecution's enquiries discovered?" what could then
10 have been said?
11 A. I think if I had been asked by counsel what their
12 instructions were to be, I would have said, as
13 a prosecutor with the duties that I have, that we should
14 not -- we should not be coy about the matter, but we
15 should explain in full what we have done and the efforts
16 that we have taken to try to secure evidence in support
17 of her assertion, but that we have failed.
18 Q. Do you agree with the last sentence of Mr Simpson's
19 paragraph 18, that one thing counsel could not do would
20 be put forward the account that Andrea McKee had given?
21 THE CHAIRMAN: I don't think anyone is suggesting that could
22 have been done.
23 MR EMMERSON: I am simply querying the suggestion that
24 paragraph 18 contains an error --
25 THE CHAIRMAN: Yes, very well.
133
1 MR EMMERSON: -- which is what I thought the burden of the
2 questions Mr McGrory was putting about that paragraph
3 was.
4 Is there anything within paragraph 18, in your
5 judgment, which is wrong?
6 A. No. Going slightly back to your question, I can't
7 imagine that a responsible member of the Bar, acting
8 with probity, could do that.
9 Q. We then move on to paragraphs 19 and 20 which tell us
10 that:
11 "The overall effect of [Andrea McKee's] maintenance
12 of the story", in Mr Simpson's view, "was to contaminate
13 any evidence that she may give and completely to
14 undermine her general credibility.
15 "In those circumstances, I am not in a position to
16 advise that she can be put forward by the prosecution as
17 a witness capable of belief."
18 Now, from the evidence you have given us so far, it
19 follows that it is that aspect of the advice that you
20 regarded as operative. Is that right?
21 A. Yes.
22 Q. Can you help us just a little? If we could look,
23 please, at [33980], this is the minute of the meeting in
24 which you ask Mr Simpson to provide that advice. If we
25 pick it up at the third main paragraph:
134
1 "The Director said ..."
2 We have looked at this passage already, but, to
3 remind ourselves:
4 "The Director said that he had to be sure that he
5 had taken every proper step to advance the case and he
6 expressed the view that in all the circumstances
7 Andrea McKee may remain credible on the main issue."
8 Correct?
9 A. Yes.
10 Q. You thought it was important:
11 "... he should take an informed decision on how the
12 case may be progressed in accordance with the directing
13 test."
14 Because Mr Simpson had not yet seen the witness:
15 "He requested that Mr Simpson now confer with the
16 witness and provide written advices as to whether she
17 can be presented as a credible witness."
18 A. Yes.
19 Q. Can you help the Panel with this aspect of the process?
20 Obviously, because of the way this particular decision
21 came to be taken, you are the decision-maker?
22 A. Yes.
23 Q. But you were not present in the consultation itself?
24 A. No.
25 Q. So to that extent, you do not have the opportunity to
135
1 form your own first-hand impression of the witness'
2 demeanour, but obviously you do have the opportunity to
3 evaluate the objective considerations that bear for and
4 against an assessment of her creditworthiness.
5 A. It is, we think, an advantage for the prosecutor or
6 counsel to be able to confer with a witness in advance
7 of the witness giving evidence.
8 If there is perhaps a weakness, that would be where
9 someone says, "I have to take the decision and I am not,
10 in effect, able to see the witness for herself."
11 Q. To the extent that assessments of credibility rely on
12 pure objective criteria, matters that can be laid down
13 on paper and evaluated one way or another, then
14 obviously you are in a position to review the relevant
15 factors that have been brought to your attention.
16 To the extent that it depends upon an evaluation of
17 a witness' demeanour, the readiness with which they seem
18 to be able quickly to respond to difficult questions
19 with apparently untruthful answers, to what extent are
20 you reliant then on the opinion of counsel?
21 A. I am certainly reliant on the opinion of counsel, but
22 that opinion can be relatively demonstrated where there
23 has been a factual change in the evidence which the
24 witness is purporting to give as against and compared
25 with the facts as understood by the investigators, and
136
1 I think, in those circumstances, where there is
2 a measurable difference in objective fact, then it makes
3 it relatively easy for the decision-maker to come to
4 a view as to the advice that has been given.
5 Q. You have told us that this was a finely balanced
6 decision. This is one of those cases where you think
7 different prosecutors could have reached different
8 decisions on.
9 Can I ask you this: where, in this minute, the words
10 are attributed to you that you thought that, despite the
11 lies apparently told thus far, it was possible that
12 Andrea McKee could still be regarded as credible on the
13 main issue, is it fair to say you were in two minds at
14 that stage or undecided?
15 A. I think my approach was as contained in the first
16 paragraph. I expressed the view that, at that moment,
17 the moment of instruction, she may have remained
18 credible.
19 If I formed a view that she was not credible at that
20 time, I perhaps would not have instructed counsel to
21 confer with her. I wanted to have the advantage of
22 an experienced barrister who had thoroughly prepared
23 that case for prosecution. I wanted him to see the
24 witness. I wanted to listen to his account of that
25 conference, and, in the light of that, take what
137
1 I remain -- viewed as a difficult decision, but
2 a decision I couldn't avoid.
3 Q. Does it follow from that sequence of events that it was
4 Mr Simpson's consultation and the outcome of it that was
5 the final deciding factor so far as you were concerned?
6 A. Yes.
7 MR EMMERSON: Thank you.
8 Further questions from MR UNDERWOOD
9 MR UNDERWOOD: Just a couple of matters arising out of that,
10 if I may, Sir Alasdair.
11 Do I understand your evidence to be this: that if
12 counsel had asked you what they were to tell the
13 magistrate on 19th March about what had transpired
14 between the police, your office and Mrs McKee about what
15 she had said on 22nd December, you would have instructed
16 counsel to be completely candid with the court?
17 A. Yes.
18 Q. The court would, therefore, have been told that, on
19 9th January 2004, she had had a consultation at which
20 she had given a quite extensive account of the
21 development of her child's illness over the course of
22 December. Is that correct?
23 A. Forgive me, I am not certain as to the extent to which
24 being foresighted would be. I certainly would have in
25 mind that the medical evidence, such as it was, should
138
1 be given to the court, and I think the court, in
2 fairness, would be entitled to the other information
3 that was troubling the prosecution.
4 I would not see any reason not to provide
5 a forthright account. I have to bear in mind this is
6 not the only single case in which I prosecuted, and the
7 reputation of the service which I head is something that
8 is important, and I think, where there are difficulties,
9 by and large acting with candour is the right approach.
10 Q. Well, would that candour have extended to any perceived
11 shortcomings in the work done by your department?
12 A. If necessary, certainly.
13 Q. So would the magistrate have, therefore, been told that
14 no step whatever was taken to go back to the GP's
15 surgery after the account given by Mrs McKee on
16 9th January 2004 to test what she was saying?
17 A. If one viewed that as an error and the error was
18 relevant to the proceedings, then I am not slow to
19 accept responsibility for what I or my colleagues do and
20 which is or may be wrong.
21 Q. Finally, you said that the decision whether to regard
22 Mrs McKee's credibility as being fatally undermined by
23 her lies about Pendine was a finely balanced one. Is
24 that a fair assessment of your evidence?
25 A. The decision that she was no longer credible and could
139
1 not be advanced as such, yes, was a finely balanced
2 decision.
3 Q. It was particularly important with a finely balanced
4 decision, wasn't it, that you had all the material at
5 your fingertips which could balance either way on that?
6 A. It was important that I had the relevant material before
7 me whether in terms of physical material or whether in
8 terms of the knowledge of others such as counsel who has
9 advised with such particularity.
10 Q. You see, the difficulty I have with this, and let me put
11 it to you, is that I can see no record anywhere that
12 anybody, counsel, Mr Morrison or you, having regard to
13 the number of times on which Mrs McKee had reiterated
14 the account of the conspiracy which she was now
15 asserting. Would you accept that?
16 A. In terms of a physical note of it?
17 Q. Yes.
18 A. Yes. I accept that, save and except to the extent that
19 it appears in the papers that we have been referred to
20 today and was in the minds of those who were providing
21 me with advice.
22 Q. You say that. Where does it appear in the papers that,
23 for example, she had taken -- where did it appear in the
24 papers before you at the time that she had taken
25 Tracey Clarke to the police?
140
1 A. I am trying to think. I mean, you have raised something
2 about papers. I am content to accept that I was
3 dependent upon my senior colleagues and counsel to draw
4 together the relevant considerations which I weighed.
5 Q. Yes. You see, the difficulty again is, when one looks
6 at the notes of consultation that Mr Morrison had with
7 her and of his opinion upon which you eventually acted,
8 there is no reference to any of that. Would you accept
9 that?
10 A. Well, if you say so, I do accept it.
11 MR UNDERWOOD: I have no further questions. Thank you very
12 much.
13 Questions from THE PANEL
14 THE CHAIRMAN: Sir Alasdair, you have told us that
15 ultimately the decisions which emanate from your
16 department are your responsibility. That's, to quite
17 a large measure, necessarily a vicarious responsibility,
18 isn't it, because you can't be expected to look at the
19 nuts and bolts of every decision and how it comes to be
20 made?
21 A. I can't. I have to be responsible for ensuring that my
22 colleagues are sufficiently experienced and trained --
23 THE CHAIRMAN: Of course.
24 A. -- that there is oversight of their work, that I have
25 communicated clear policies which I ask them to follow,
141
1 that their work is acknowledged, checked and regulated,
2 but I do think it is the right approach for a Director
3 to take.
4 THE CHAIRMAN: But, of necessity, you task people to do jobs
5 and you are entitled to rely, unless there is evidence
6 to the contrary, that they are doing it properly when
7 they report back to you, aren't you? You could not do
8 your job otherwise, could you?
9 A. I could not. Yes, I do rely on senior colleagues. I am
10 cautious obviously, and, on an individual basis, one
11 might make additional enquiries to satisfy oneself, but
12 the individuals with whom I was dealing in this case
13 were persons of great experience.
14 THE CHAIRMAN: Yes. Thank you. Very well. Thank you very
15 much, Sir Alasdair.
16 (The witness withdrew)
17 MR UNDERWOOD: There are a couple of loose ends I would like
18 to tie up, if I may.
19 THE CHAIRMAN: Yes, of course.
20 MR UNDERWOOD: Miss O'Kane, who instructs Mr Emmerson, has
21 very kindly done yet further searches among the DPP
22 files and come up with some documents and also has
23 managed to get hold of transcripts of the Crown Court
24 hearings at which the question of disclosure of
25 Tracey Clarke's statement was dealt with.
142
1 Can I deal, first of all, with the documents that
2 Miss O'Kane has discovered in the files?
3 If we look at page [75382], you will recall that
4 Mr Davison was asked about a letter he had sent to
5 Mr Monteith in which he promised to look at the neglect
6 file and give him some disclosure from it. At that
7 stage, nobody could find any follow-up from that.
8 Mr Davison thought he would have followed it up. What
9 we have here is a note of his saying:
10 "I have sent the enclosed letter to Monteith's
11 solicitor. It has all the disclosure in the complaint
12 file. You may wish to put this copy letter on the
13 brief."
14 If we go over to [75383], there is a letter of
15 7th April 1998 to the solicitor representing Mr Hobson:
16 "Dear Sir,
17 "R v Paul Rodney Marc Hobson.
18 "Belfast Magistrates' Court."
19 If we go to the second major paragraph:
20 "I enclose herewith copies of the following written
21 exhibits which are not being used by the prosecution."
22 The final one of those is :
23 "Tape summary transcript -- Atkinson (x 3)."
24 Again, we have been shown the originals in the hands
25 of the DPP and the transcripts of the interviews of
143
1 Mr Atkinson are there marked, "Tape summary transcript".
2 They are not summaries. They are the transcripts. The
3 "x 3" refers, of course, to three tapes. There were two
4 tapes of the September interview and there was one tape
5 of the October interview, from which we infer that, in
6 fact, there was disclosure, unredacted, of the October
7 interview at which the telephone records were put to
8 Mr Atkinson.
9 Then if we look at page [75396], we see the
10 frontispiece of a transcript of dealings before
11 Lord Justice McCollum on 13th November 1998. If I take
12 you to page [75398], we see in the final third of this:
13 "Mr [blank]: So that again third party proceedings
14 may well solve that matter.
15 "The third matter is a matter which involves the
16 department and the situation, my Lord, is that there
17 were two persons who made statements to the police who
18 are referred to in documents as Witnesses A and B, and
19 insofar as they are concerned, matters which allegedly
20 are in their statements were put to Hobson at interview.
21 "Lord Justice McCollum: Yes.
22 Mr [blank]: By reason of the medical matters, we
23 sought full statements. We are not concerned with the
24 names or addresses or identity of the persons. In fact,
25 from the disclosure", overleaf, [75399], "we have from
144
1 other matters, we believe we know the identity but we
2 are not concerned with that. The situation is that we
3 have sought the two original statements by those
4 witnesses and the department's attitude is that ..."
5 Then what's set out in italics is the letter that we
6 have seen that Mr Burnside had sent."
7 Then if we go down to the bottom of that page after
8 Lord Justice McCollum says "Yes":
9 "Mr [blank]: But one of the crucial issues
10 concerns -- they are two medical aspects. One concerns
11 matters subsequent to his admission to hospital, but the
12 initial matter, which also concerns Dr [blank], concerns
13 the injuries which he sustained and the cause of those
14 injuries, and so we consider", over the page, [75400],
15 "that the statements of Witnesses A and B (not concerned
16 about who they are) but we respectfully say that we are
17 entitled to those."
18 It is not, to be fair, entirely clear how they could
19 possibly have been relevant to the medical aspects, but
20 that may not matter for the moment.
21 Then the matter goes on. Again there are some
22 italicised parts.
23 Then:
24 "We never sought counsel's notes. We simply sought
25 the two original statements with any identifications or
145
1 names or whatever scored out or blackened out.
2 "So that's the matter that concerns us in relation
3 to those two witnesses, my Lord.
4 "Lord Justice McCollum: Well, are you intending to
5 bring an application?
6 "Mr [blank]: Well, it may -- I mean, if it had been
7 a case -- as I say, one thing that the reasons are
8 given. No case is made by the Crown that they are
9 sensitive, so it's not a case that they have been
10 brought or intend to bring any ex parte application of
11 their own.
12 "Lord Justice McCollum: No, no.
13 "Mr [blank]: So what we respectfully say is that
14 perhaps those two statements could be provided to the
15 judge who considers the ex parte in respect of the
16 medical aspect of the case."
17 That may have been the link between these and the
18 medical aspect.
19 Then:
20 "Lord Justice McCollum: Yes, I think you could make
21 a combined application.
22 "Mr [blank]: Yes, exactly.
23 "Lord Justice McCollum: And if both sides were
24 represented then and everything was available to the
25 judge, then he could rule on these matters.
146
1 "Mr [blank]: Yes, indeed. That's what we are
2 seeking."
3 Then over the page at [75401].
4 "Mr Kerr: If it's of assistance, I personally --
5 although referred to as the person who consulted, I
6 personally have not considered the statements on the
7 basis asked for, but I will consider them, and it may
8 well be that we'll be able to resolve the difficulty.
9 It may be."
10 We then get the situation arising again on
11 16th December 1998. We see that at page [75403]. At
12 line 25 it says:
13 "Mr Justice McCollum: How far can these things go
14 really?
15 "Mr [blank]: I accept that, my Lord, but the other
16 factor I would mention, I mentioned to your Lordship on
17 the last occasion that there were two witnesses whose
18 statements were not furnished to the defence."
19 Over the page, [75404]:
20 "Mr Justice McCollum: Whose statements?
21 "Mr [blank]: Two statements of two witnesses.
22 "Mr Justice McCollum: Yes. What do you say ...
23 "Mr [blank]: They were furnished. I indicated the
24 matter to your Lordship on the last occasion, and
25 Mr Kerr, who appeared for the Crown, indicated that he
147
1 didn't anticipate that there would be any trouble in us
2 getting those two statements. As yet, we still haven't
3 received them."
4 I suspect that must have meant they were not
5 furnished.
6 "Mr Justice McCollum: Have you spoken to Mr [blank]
7 about this?
8 "Mr [blank]: No, I haven't, my Lord. Mr Kerr,
9 I think, I might have to speak to. Mr [blank] is only
10 standing in.
11 "Mr Justice McCollum: Yes. Do you know anything
12 about this, Mr McCrudden?
13 "Mr McCrudden: I don't know, my Lord. I am
14 instructed in the matter with Mr Kerr, but this
15 particular development is news to me, I have to say, but
16 I can't see any difficulty about these statements being
17 made available. In other words, my Lord, I don't see
18 that that should be a factor that should delay the
19 proceeding when my Lord is ready."
20 So it does appear, not that the judge agreed to or
21 made redactions, but, rather, he was never asked to give
22 statements over that were unredacted and the redactions
23 must have followed from what counsel was asking for in
24 the first place. I hope that clarifies.
25 THE CHAIRMAN: Yes. Thank you.
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1 MR UNDERWOOD: I understand that we can't resume until
2 11 o'clock on Monday.
3 THE CHAIRMAN: Very well. 11 o'clock on Monday.
4 (3.00 pm)
5 (The hearing adjourned until 11 o'clock on Monday,
6 21st September 2009)
7
8 --ooOoo--
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1 I N D E X
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MR KEVIN CHARLES PATRICK McGINTY ................. 1
4 (sworn)
Questions from MR UNDERWOOD ............... 1
5 Questions from MR McGRORY ................. 20
Questions from MR DALY .................... 23
6 Questions from MR EMMERSON ................ 26
Further questions from MR UNDERWOOD ....... 39
7 Questions from THE PANEL .................. 43
8 SIR ALASDAIR McLAREN FRASER (sworn) .............. 46
Questions from MR UNDERWOOD ............... 46
9 Questions from MR McGRORY ................. 79
Questions from MR DALY .................... 113
10 Questions from MR EMMERSON ................ 119
Further questions from MR UNDERWOOD ....... 138
11 Questions from THE PANEL .................. 141
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