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Transcript (Afternoon Session)
Hearing: 8th December 2009, day 71
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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 Tuesday, 8th December 2009
commencing at 2.00 pm
Day 71
1 (2.00 pm)
2 THE CHAIRMAN: Mrs Winter, can you hear me?
3 MS WINTER: Yes, sir.
4 THE CHAIRMAN: You just take your own time. I gather you
5 want to read evidence to us. Is that right?
6 MS WINTER: Yes, sir.
7 THE CHAIRMAN: I gather you are not at the moment in the
8 best of health, and I am sorry to hear that. Please, if
9 you want a break, you will say so, won't you?
10 MS WINTER: Thank you.
11 THE CHAIRMAN: You go ahead at your own pace.
12 Closing submissions by MS JANE WINTER
13 MS WINTER: Thank you, sir.
14 British Irish Rights Watch and the Committee on the
15 Administration of Justice would like to thank the
16 Inquiry for this opportunity to make oral submissions.
17 As far as is humanly possible, we do not intend to
18 repeat our written closing submissions, and for that
19 reason, and for the sake of clarity, we confirm that we
20 have nothing to add to what we have said in writing in
21 relation to parts 1, 2, 3, 4, 7, 10, 11, 12, 13 and 17
22 of the Inquiry team's summary of evidence and issues.
23 What we intend in these oral submissions is to draw
24 together what we see as being the major issues for the
25 Inquiry's consideration and to show how they relate to
1
1 the Inquiry's terms of reference. We do not intend to
2 ask for any document or photograph to be displayed on
3 the screen, save that described as plan 4, which shows
4 the various positions of the police Land Rover. Where
5 we have referred to any written submissions, we will
6 give the page numbers where those submissions appear in
7 the consolidated closing submissions.
8 The first matter to be considered under the
9 Inquiry's terms of reference is whether any wrongful act
10 or omission on the part of the RUC facilitated
11 Robert Hamill's death and, if so, whether any such act
12 was intentional or negligent.
13 In this regard we intend to address aspects of
14 parts 5, 6 and 9 of the consolidated closing
15 submissions.
16 It seems to us that the period of time from the
17 events immediately preceding the attack on Robert Hamill
18 to the eventual arrival of the Scene of Crimes Officer
19 were what are known as the "golden hours", when the
20 murder might have been prevented, and, once the assault
21 had taken place, the RUC had the best opportunity to lay
22 the foundation for a successful investigation of the
23 crime.
24 With the Inquiry 's terms of reference in mind, we
25 intend to address you on the following issues in
2
1 relation to that period of golden hours:
2 Whether the RUC facilitated Robert Hamill's death or
3 could have done anything to prevent it;
4 The position of the Land Rover; and
5 Facts and omissions which may have obstructed the
6 investigation.
7 Under each of these headings we will also address
8 the issues of negligence and intention. It has not been
9 suggested that any officer was involved in the attack on
10 Robert Hamill which appears to have been as swift as it
11 was brutal, nor that any officer encouraged the
12 perpetrators.
13 How quickly the Land Rover crew descended from their
14 vehicle is in dispute, and, even if they had emerged at
15 once, it is doubtful they could have prevented the
16 attack, although it is possible that they might have
17 been able to intervene rapidly enough to prevent
18 Robert Hamill's injuries from becoming fatal.
19 It is because of that possibility that we suggest
20 that the Inquiry should address the question of whether
21 the Land Rover crew could have prevented Robert Hamill's
22 death. Crucial to that question is a determination of
23 at what point the crew got out of the Land Rover.
24 For the reasons set out at pages 300-301 of part 6
25 of the consolidated closing submissions, we consider
3
1 that the weight of the reliable evidence shows that the
2 Land Rover crew did not leave their vehicle until the
3 attacks on Robert Hamill and D had already taken place.
4 We respectfully remind the Inquiry that the reason
5 the Land Rover crew was on duty that night in the centre
6 of Portadown, a notorious flash point for sectarian
7 confrontations, was the prevention of public disorder.
8 Furthermore, Thomas Mallon alerted them to the fact
9 that people were leaving St Patrick's Hall. They should
10 have been in a state of high alert. Instead members of
11 the crew say they were engaged in friendly conversation
12 with two of the suspects, Stacey Bridgett and
13 Dean Forbes.
14 There is an inconsistency here which we draw to the
15 Inquiry's attention. If, as they say happened, the
16 Land Rover crew emerged from their vehicle in response
17 to Constable Neill being dragged from the Land Rover,
18 why were Stacey Bridgett and Dean Forbes prosecuted? If
19 they were talking to officers who were still inside the
20 Land Rover, surely that gives them an alibi.
21 The theory has been advanced by the PSNI, and that's
22 at page 98 of part 5, that the Land Rover crew were
23 distracted by the interaction between Thomas Mallon and
24 Stacey Bridgett and Dean Forbes, and that their
25 immediate priority was to watch over Thomas Mallon to
4
1 make sure that he went on his way safely.
2 However, if they were watching over Thomas Mallon
3 and keeping an eye on Stacey Bridgett and Dean Forbes
4 just at the moment of the attack on Robert Hamill, why
5 did the RUC recommend the prosecution of Stacey Bridgett
6 and Dean Forbes?
7 Thomas Mallon could not identify the man who spoke
8 to him, other than to say that one of the them was
9 carrying a bottle of Buckfast, Buckfast being one of the
10 beverages of choice on such occasions at that time.
11 Doubtless there was more than one young man in Portadown
12 town centre that night carrying such a bottle. Their
13 identification of Stacey Bridgett and Dean Forbes as
14 being the persons interacting with Thomas Mallon comes,
15 as far as we can see, solely from the Land Rover crew.
16 Given that the Land Rover crew named so few people
17 that they recognised at the scene, and given the
18 allegations against Reserve Constable Atkinson regarding
19 Allister Hanvey, the Inquiry may think that the
20 inconsistencies surrounding Stacey Bridgett and
21 Dean Forbes are significant and they may cast doubt on
22 the collective credibility of the Land Rover crew and
23 they may suggest other alleged perpetrators, apart from
24 Allister Hanvey, benefited from attempted police
25 protection.
5
1 Had Stacey Bridgett and Dean Forbes come to trial,
2 no doubt their defence counsel would have argued that if
3 they were chatting with the Land Rover crew and
4 bantering with Thomas Mallon in plain sight of the crew,
5 they could not have been attacking Robert Hamill.
6 Indeed, it is our understanding that the defence had
7 served notices on some of the officers of their
8 intention to call them as alibi witnesses.
9 Leaving those inconsistencies aside, in our
10 submission, in light of the fact that the Land Rover
11 crew were deployed on public order duties, they were in
12 neglect of their duty, because, according to their own
13 accounts, albeit we say those accounts must be
14 approached with caution, some of them were engaged in
15 chat with Dean Forbes and Stacey Bridgett when they
16 should have been on high alert, especially after
17 Thomas Mallon's warning.
18 Given the overwhelmingly Protestant make-up of the
19 RUC in 1997 and the perceptions that RUC officers had of
20 Catholics and Catholics of the RUC, as touched on in
21 Professor McEvoy 's report, particularly in sections 1
22 and 2, and overlaid as those perceptions were by the
23 political tensions surrounding the reform of policing
24 and the run-up to the marching season, in our experience
25 the Land Rover crew would have been highly atypical if
6
1 they had been unduly concerned about a young Catholic
2 man getting a beating. In our submission, their
3 insouciance, even after they had been warned of
4 potential trouble, is evidence of their indifference to
5 the safety of the Catholics leaving the dance hall, and
6 also amounted to negligence.
7 Those four officers were all armed with handguns.
8 We do not suggest they should have shot anyone, but we
9 do suggest that a warning shot fired into the air might
10 well have brought those inclined to fight to their
11 senses or, at the very least, might have caused a pause
12 in the proceedings of which the crew might have taken
13 advantage. They also had a Land Rover with flashing
14 lights and a siren which they could have deployed
15 proactively.
16 We leave it to the Inquiry to determine whether
17 there was anything the Land Rover crew could have done
18 to prevent the assault. In our submission, the evidence
19 shows that they took no steps whatsoever to try to do
20 so.
21 Another aspect which goes to the issue of negligence
22 is the position of the Land Rover at the time of the
23 attacks, about which the consensus seems to be that it
24 was at LR3. At this point perhaps it would be helpful
25 if we could have plan 4 displayed.
7
1 THE CHAIRMAN: Yes, that's on our screens.
2 MS WINTER: Thank you. If LR3 is accurate, then the vehicle
3 was parked facing High Street, although not looking
4 directly down it, as it was slightly angled towards the
5 Halifax on the corner of Woodhouse Street. From the
6 passenger side window there would have been a fairly
7 clear view down Woodhouse Street, but from the driver's
8 side window there was no view up Thomas Street. It is
9 generally agreed that the view from the back windows of
10 the Land Rover was restricted, although some witnesses
11 say that the back door of the Land Rover was partially
12 open.
13 The warning delivered by Thomas Mallon was specific.
14 He said that people were leaving St Patrick's Hall.
15 Anyone with local knowledge will have known Catholics
16 leaving the dance hall would come down Thomas Street,
17 cross the city centre junction and go down
18 Woodhouse Street to get home. Constable Neill, the
19 driver, seems to have parked the Land Rover in such
20 a way that he did not have a good view of the town
21 centre junction or of Thomas Street. He was also
22 partially blocking Woodhouse Street, thus making it more
23 difficult for Catholics to cross quickly from
24 Thomas Street and get away from the town centre down
25 Woodhouse Street. People coming down Thomas Street
8
1 would have had to cross diagonally to their right to
2 reach Woodhouse Street. With the Land Rover parked
3 where it was, they would have had to skirt round the
4 back of the Land Rover in order to enter
5 Woodhouse Street.
6 Thus the Land Rover was not well placed to allow its
7 occupants a strategic overview of the situation at the
8 town centre junction, and it was creating something of
9 a bottle-neck at the entrance of Woodhouse Street.
10 An officer intent on preventing public disorder
11 would surely have parked facing the town centre junction
12 with the best possible sightings of both Thomas Street
13 and Woodhouse Street, while keeping the exit from
14 Thomas Street and the entrance to Woodhouse Street
15 clear. In our submission, it is further evidence that
16 Thomas Mallon's warning was not taken seriously and that
17 the Land Rover crew, in particular Constable Neill, was
18 negligent in not seeking to place the Land Rover in the
19 best possible position to both prevent and observe any
20 public disorder.
21 If the Inquiry is persuaded that the Land Rover was
22 badly positioned, then you will need to decide whether
23 the Land Rover crew was merely careless or whether their
24 actions were deliberate.
25 A further question for the Inquiry is whether the
9
1 RUC obstructed the investigation into Robert Hamill's
2 death. We will come to an analysis of the allegations
3 concerning Reserve Constable Atkinson later, but we say
4 that the Land Rover crew were further negligent in going
5 off duty without making statements about what was
6 obviously a serious major incident.
7 Reserve Constable Atkinson and Constable Neill were
8 also negligent in not naming Allister Hanvey in their
9 statements as having been present at the scene. We note
10 that the PSNI concedes that Reserve Constable Atkinson
11 deliberately withheld Allister Hanvey's name in order to
12 protect him from ever coming to police attention. That,
13 sir, is at part 9, page 581.
14 We also say that Constable A was negligent in
15 arresting Wayne Lunt and then releasing him. She
16 compounded her negligence by not recording her detention
17 of Wayne Lunt in her notebook. She was further
18 negligent in not re-arresting Wayne Lunt when
19 Colin Prunty told her he had seen Wayne Lunt kicking
20 Robert Hamill.
21 The 2001 Police Ombudsman's report was critical of
22 the behaviour of Inspector McCrum in particular. It
23 found he should have concentrated more on debriefing
24 those under his command, thus ensuring that all relevant
25 witness statements were completed. It criticised him
10
1 for not taking a more active leadership role by
2 supervising and assisting those under his command, and,
3 as the senior officer at the scene, for being
4 insufficiently hands-on in his approach.
5 This investigation resulted in a recommendation that
6 Inspector McCrum be admonished, but he refused to accept
7 any form of reprimand. Colin Murray made similar
8 criticisms in his first report and those are in part 9,
9 pages 518-519.
10 The RUC were also negligent in not securing the
11 scene until some five and a half hours after the
12 incident. The scene was not taped off until 7.25 am.
13 A SOCO was not requested until 8.00 am, and he did not
14 actually arrive until 9.55 am. The PSNI concedes that
15 it is valid to highlight the failure to preserve the
16 scene for forensic examination at part 9, page 610.
17 In our submission, all these acts of omission
18 materially obstructed the GBH investigation and,
19 subsequently, the murder investigation. In our view,
20 the golden hours were squandered.
21 Sir, that completes our additional submissions on
22 parts 5, 6 and 9 of the consolidated closing submissions
23 and we turn now to aspects of parts 8 and 14, the
24 question of whether Reserve Constable Atkinson tipped
25 off Allister Hanvey and the RUC's response to that
11
1 allegation, which seems to us can conveniently be
2 considered together.
3 These are clearly matters that go to the issues
4 identified in the Inquiry's terms of reference of
5 whether the investigation of Robert Hamill's death was
6 obstructed or attempts were made to obstruct it and
7 whether any such obstruction was intentional or
8 negligent.
9 The following facts are not in dispute. We know
10 that two telephone calls were made from the Atkinson
11 household to the Hanvey household. We know that
12 Thomas Hanvey gave Allister Hanvey a false alibi on the
13 night of the attacks. We know that Reserve
14 Constable Atkinson and Constable Neill omitted to
15 identify Allister Hanvey as having been present at the
16 scene of the attacks in the statements they made when
17 they were recalled to the RUC station. We know that the
18 McKees were convicted of perverting the course of
19 justice after admitting that they had lied about the
20 first of the two telephone calls. We also know that the
21 RUC charged Reserve Constable Atkinson, Eleanor Atkinson
22 and Kenneth Hanvey with perverting the course of justice
23 by lying about that telephone call, but the case
24 collapsed.
25 The only evidence for the content of the telephone
12
1 calls comes from a statement which Tracey Clarke made to
2 the police and repeated to counsel for the DPP,
3 Gordon Kerr, QC, but which she repudiated on oath before
4 this Inquiry.
5 We submit that one of the questions for the Inquiry
6 is: did the manner in which the RUC took Tracey Clarke's
7 statement amount to obstruction of the murder
8 investigation, and, if so, was that deliberate or
9 negligent? We say that the test of whether the manner
10 in which the statement was taken amounted to obstruction
11 is whether any procedural improprieties were such that,
12 had Allister Hanvey or Reserve Constable Atkinson come
13 to trial, her statement would have been deemed
14 unreliable.
15 Tracey Clarke was only 17 at the time when she made
16 her statement and she was a vulnerable juvenile. She
17 had a difficult relationship with her mother and
18 stepfather. She also had two jobs, working by day in
19 a travel agent's and by evening as a waitress. She was
20 taken without warning to an RUC station at 10.30 pm on
21 a Friday night. She was not legally represented and was
22 not consulted about the presence of her aunt,
23 Andrea McKee, who Tracey Clarke alleges intervened in
24 the police interview. Tracey Clarke had completed
25 a police questionnaire on 8th May 1997 in which she said
13
1 she had seen nothing.
2 In the late-night interviews on 9th and 10th May she
3 completely changed her story. Skilful defence counsel
4 would have had very little difficulty in seriously
5 undermining her credibility. Even if counsel were not
6 skilful, any decent trial judge would have been
7 seriously concerned about her credibility and would have
8 warned himself and any jury about those concerns.
9 One might have thought the police officers, aware
10 that a serious allegation had been made against another
11 officer that he had conspired with an alleged
12 perpetrator of the murder, would have played it by the
13 book. They would have wanted Tracey Clarke's evidence
14 to stand up in court, unless, of course, they wanted to
15 protect their colleague. As it was, they acted so
16 negligently as to amount, in our submission, to
17 obstruction.
18 As to whether their actions were deliberate, we
19 leave that to the Inquiry to determine, but we invite
20 you to consider that question in the context of the
21 police investigation as a whole rather than looking at
22 it in isolation.
23 Another question that the Inquiry obviously needs to
24 examine is whether, on the balance of probabilities,
25 Reserve Constable Atkinson did tip Allister Hanvey off.
14
1 This will require consideration of whether
2 Tracey Clarke's original statement was true or not. She
3 certainly convinced Gordon Kerr, QC, an experienced and
4 senior barrister, of her veracity, even though she told
5 him she would rather die than give evidence.
6 We deal with this issue at pages 233-234 of part 5
7 of the consolidated closing submissions. If her
8 original statement was true, then the Inquiry will be
9 forced to the conclusion that the evidence she gave this
10 Inquiry was not.
11 In determining this matter, the Inquiry is entitled
12 to have regard to Reserve Constable Atkinson's
13 behaviour. He caused Andrea and Michael McKee and
14 possibly Eleanor Atkinson and Kenneth Hanvey to lie
15 about the telephone call between his household and that
16 of Allister Hanvey.
17 The question for the Inquiry must be: why would he
18 do so, if he did not, in fact, make the calls himself
19 and if he did not tip Allister Hanvey off? We note that
20 the PSNI accepts that he did tip Allister Hanvey off at
21 part 8, page 482.
22 If the Inquiry accepts it also, then that most
23 definitely was obstruction of the police investigation
24 and it must have been deliberate, because they are not
25 the kinds of acts that are done negligently or
15
1 accidentally.
2 We would go further and say this was an act of
3 collusion.
4 Turning now to the RUC's response to the tip-off
5 allegation, we have already commented on the
6 circumstances in which Tracey Clarke's statement was
7 taken. Initially, DCS McBurney did what one would
8 expect any good police officer to do on learning of
9 Tracey Clarke's allegation that Reserve
10 Constable Atkinson had tipped off Allister Hanvey. He
11 sought Atkinson's records from his telephone company and
12 these were in DCS McBurney's possession around
13 16th May 1997.
14 Those acting for serving and retired police
15 officers, Edwards & Co, have explained that, in 1997,
16 telephone records obtained from telephone companies were
17 regarded as intelligence and could not be introduced in
18 court as evidence. That's at part 14, page 1096. As
19 the Inquiry will know, all intelligence is graded for
20 its reliability and its significance. Allister Hanvey's
21 telephone records would have been rated A1 in relation
22 to the fact that two calls were made to the Hanvey
23 household from the Atkinson household, a fact which
24 seems not to be in any dispute.
25 The telephone records were not, of course, probative
16
1 of the contents of the telephone calls. However,
2 DCS McBurney had, in the person of Tracey Clarke,
3 a witness who was claiming to have knowledge of the
4 content of those calls. Once he obtained the telephone
5 records, he had confirmation of the fact that a call had
6 been made from the home of Reserve Constable Atkinson at
7 8.37 am on 27th April 1997, although Tracey Clarke put
8 it at around 8.00 am, and the fact that more than one
9 such call had been made, although calls were not being
10 made every day, as described by Tracey Clarke.
11 In our written submissions we have pointed out that
12 Reserve Constable Atkinson had other opportunities to
13 speak to Allister Hanvey apart from over the telephone,
14 and that's at part 14, page 1094.
15 The central tenets of the tip-off allegation were:
16 1. Reserve Constable Atkinson had advised
17 Allister Hanvey to dispose of his clothing.
18 2. He had kept Allister Hanvey informed about the
19 police investigation.
20 Once DCS McBurney had corroboration that the second
21 allegation had some verifiable truth in it, one would
22 not have expected him to sit in the long grass and wait
23 to see what happened. Two immediate courses of action
24 were open to him. One was to investigate
25 Allister Hanvey's alibi, and we will move to that
17
1 shortly. The other was to recommend RC Atkinson's
2 immediate suspension.
3 The Inquiry may feel that, given the very serious
4 nature of the allegation, that a police officer had
5 assisted and was intending to protect an alleged
6 offender, suspension would have been a wise precaution,
7 requiring very little in the way of a judgment call and
8 absolutely no benefit of hindsight. Instead
9 DCS McBurney refrained from putting the tip-off
10 allegation to Reserve Constable Atkinson until
11 9th September 1997 and then did so in such a way that
12 it, in our submission, itself amounted to a tip-off.
13 In the interim, DCS McBurney seems to have
14 concentrated on preparing the case against the alleged
15 perpetrators, apparently relying solely on the
16 statements of Tracey Clarke and Timothy Jameson.
17 DCS McBurney's purported reason for not putting the
18 allegation to Reserve Constable Atkinson was the need to
19 protect Tracey Clarke. However, he was planning to put
20 her in the witness box eventually, so her allegations
21 would have become public knowledge sooner or later.
22 In any case, it would seem that Reserve
23 Constable Atkinson knew she had been to the police
24 within a very short time of her having done so.
25 Andrea McKee told Detective Inspector Irwin, when he
18
1 interviewed her on 25th October 2000, that Reserve
2 Constable Atkinson had told her, shortly after
3 Tracey Clarke had made her statement, that he knew that
4 she had been to the RUC station and made a statement.
5 The Inquiry team has suggested that, if that is
6 true, then Reserve Constable Atkinson knew about
7 Tracey Clarke's statement, someone must have tipped him
8 off and that someone, they suggest, must have been the
9 senior investigating officer, DCS McBurney. They have
10 also pointed that this would have enabled Reserve
11 Constable Atkinson to keep Allister Hanvey informed.
12 That's at part 14 on page 1050.
13 Sir, we share the Inquiry team's concerns. Knowing
14 that Reserve Constable Atkinson may have assisted and
15 protected Allister Hanvey, one might have expected
16 DCS McBurney to have sought independent evidence that
17 was not dependent on Tracey Clarke and Timothy Jameson's
18 evidence alone. Several witnesses placed
19 Allister Hanvey at a party with some of the other
20 alleged perpetrators in the early hours of the morning
21 after the attack and Allister Hanvey had withdrawn money
22 from an ATM at 8.46 am on High Street, Portadown, on
23 27th April. Yet DCS McBurney accepted uncritically his
24 alibi that he had been staying at his uncle
25 Thomas Hanvey's house that night.
19
1 The question for the Inquiry we suggest is: why did
2 DCS McBurney delay until September before putting the
3 tip-off allegation to Reserve Constable Atkinson? One
4 possible answer is that he hoped that the alleged
5 perpetrators would be convicted and that Reserve
6 Constable Atkinson's alleged crime could be suppressed.
7 If so, and especially if DCS McBurney did inform Reserve
8 Constable Atkinson about Tracey Clarke's allegations,
9 that would have been collusion.
10 Having informed Reserve Constable Atkinson on
11 9th September of the precise nature of the allegations
12 against him, DCS McBurney then delayed until 9th October
13 before interviewing Reserve Constable Atkinson again
14 about the telephone calls. This gave Reserve
15 Constable Atkinson time to concoct a false alibi for the
16 calls with Eleanor Atkinson and Kenneth Hanvey, who both
17 denied it, and the McKees, who have both admitted it and
18 been convicted and sentenced for it.
19 We submit that the guilty pleas and convictions of
20 the McKees pass the highest of tests that, on the
21 balance of probabilities, Reserve Constable Atkinson,
22 Eleanor Atkinson and Kenneth Hanvey have all lied to the
23 Inquiry concerning the telephone calls.
24 It is regrettable that the trial of the McKees
25 preceded that of Reserve Constable Atkinson, his wife
20
1 and Kenneth Hanvey, and this is a matter which goes to
2 part 18 that we will revert to later. What it meant was
3 Andrea McKee came to the later trial already tarnished
4 as a person convicted of conspiracy to pervert the
5 course of justice. However, it is in some ways
6 surprising that she ever came to trial at all.
7 DCS McBurney adopted a very risky course in
8 interviewing her on 20th June 2000 as a witness without
9 cautioning her. That statement would not have been
10 admissible in court and there was a real danger that in
11 the interim between making that statement and her being
12 interviewed again under caution by DI Irwin on
13 25th October 2000 she would decide to retract. The
14 Inquiry will no doubt wish to consider why DCS McBurney
15 did that, especially since he had known since
16 September 1997 that her alibi statement was false.
17 The Inquiry may also wish to consider what prompted
18 DCS McBurney to wait until 20th June 2000 to interview
19 Andrea McKee without caution. His apparent clairvoyance
20 in foreseeing the McKees' separation is not an adequate
21 explanation, especially as he had known they had
22 separated since at least 10th October 1999.
23 Indeed, the evidence suggests that, had it not been
24 for pressure by the Hamill family on the Secretary of
25 State and pressure from the Northern Ireland Office in
21
1 turn on the chief constable, the police investigation
2 had run into the sand instead of being reopened in June
3 of 2000. DCS McBurney was certainly waiting in the long
4 grass, but we submit it was not because of some
5 strategic plan so obscure that even his right-hand man,
6 DI Irwin, could not discern it, but because he was
7 hoping the case would go away.
8 Taken in the round, DCS McBurney's response to the
9 tip-off allegation was wholly inadequate. At the very
10 best, his approach was seriously wanting in diligence to
11 the point of negligence. However, his lack of diligence
12 may bear a more sinister explanation. He may
13 deliberately have sought to shield Reserve
14 Constable Atkinson, not necessarily out of any sense of
15 comradeship or personal loyalty, but because he could
16 see how damaging it would be to the RUC, an institution
17 which the evidence seems to suggest commanded deep
18 loyalty from DCS McBurney, if it emerged that an RUC
19 officer had colluded with an alleged perpetrator in
20 what had become a very high profile case and something
21 of a cause celebre.
22 If the Inquiry were to be persuaded that
23 DCS McBurney deliberately shielded Reserve
24 Constable Atkinson, whatever his motivation, then
25 DCS McBurney would have been guilty of collusion. If
22
1 DCS McBurney did not deliberately set out to shield
2 Reserve Constable Atkinson, but the Inquiry finds his
3 actions had the effect of shielding him in practice,
4 then DCS McBurney would, we submit, have engaged in
5 passive collusion.
6 If the Inquiry accepts our submissions that both
7 RC Atkinson and DCS McBurney acted collusively, whether
8 together or independently of one another, then an even
9 more serious question arises for the Inquiry's
10 consideration, which is whether these were two rogue
11 officers within an otherwise competent, non-sectarian
12 police force, or were they members of a force that was
13 institutionally sectarian?
14 The Inquiry will no doubt be mindful of the fact
15 that an Inquiry into Robert Hamill's death was
16 established on the foot of a prima facie finding of
17 collusion by Judge Cory. We believe that collusion lies
18 at the heart of the Inquiry's deliberations and we will
19 return to this issue at the conclusion of our
20 submissions.
21 Sir, that is the last of our submissions on the
22 issue of the alleged tip-off and the RUC's response to
23 it. We turn now to that area of the Inquiry's terms of
24 reference that asks whether the investigation into
25 Robert Hamill's death was carried out with due
23
1 diligence.
2 We have already touched on many aspects of the
3 police investigation and suggested a serious want of
4 diligence during the period we have described as the
5 golden hours, amounting to serious negligence and in the
6 handling of the tip-off allegation, amounting, we say,
7 to collusion.
8 However, the RUC was not the only agency bearing
9 responsibility for the investigation as a whole. Both
10 the ICPC and the DPP had some supervision over the
11 investigation, which is why their roles require scrutiny
12 by the Inquiry.
13 In our written submissions on parts 7, 10, 11, 12
14 and 13 of the Inquiry team's summary of comments we
15 criticise many aspects of the police investigation in
16 relation to individual witnesses and suspects. We do
17 not intend to repeat those here. Instead we wish to
18 concentrate on three other aspects of the investigation
19 into Robert Hamill's murder.
20 Firstly, the handling of the complaint about the
21 investigation and the part played by the ICPC;
22 Secondly, the role of the Complaints and Discipline
23 Department within the RUC; and
24 Thirdly, the role of the DPP.
25 Sir, these submissions primarily engage parts 14, 15
24
1 and 18 of the Inquiry team's consolidated closing
2 submissions.
3 Looking first at the complaint about the
4 investigation and the part played by the ICPC,
5 Robert Hamill's family were unhappy with the police
6 investigation even before Robert Hamill died and the
7 GBH investigation became a murder investigation. Their
8 solicitor, Rosemary Nelson, wrote a letter of complaint
9 on their behalf on 6th May 1997. The complaint was
10 referred to the ICPC by the RUC under Article 7 of the
11 Police (Northern Ireland) Order 1987. The ICPC was
12 entitled to use its discretion whether to investigate
13 an Article 7 complaint.
14 However, before the chief constable,
15 Sir Ronnie Flanagan, became aware that this complaint
16 had been made, Robert Hamill died on 8th May.
17 Sir Ronnie voluntarily referred the investigation to the
18 ICPC for them to supervise. This referral was made
19 under Article 8, and an investigation into such
20 a referral by the ICPC was mandatory.
21 Sir, the basis for this is set out in part 15,
22 pages 1138-1139.
23 We suggest to the Inquiry that such a referral under
24 Article 8 was relatively rare and that there was already
25 public concern about the attack on Robert Hamill and D
25
1 and the misleading press releases that had been issued
2 by the RUC and that the chief constable was astute
3 enough to realise that this had the potential for
4 becoming a controversial case. Referral to the ICPC
5 carried a particular benefit for the RUC, in that they
6 could refuse to discuss the handling of the police
7 investigation publicly on the ground that the ICPC was
8 supervising the investigation.
9 Although references to the Article 8 referral appear
10 in the papers pertaining to the Article 7 referral, and
11 that's at [15273] in the core bundle, no trace has been
12 found of the actual Article 8 document. However, on
13 9th May 1997 the RUC put out the following press
14 release, and I quote:
15 "All the circumstances surrounding the death of
16 Robert Hamill in Portadown are being investigated by
17 a detective chief superintendent under the supervision
18 of the Independent Commission for Police Complaints."
19 Although DCS McBurney says in his statement that he
20 was requested by the chief constable, on 8th May, to
21 take responsibility for both the murder investigation
22 and the Hamill family's complaint, which has come to be
23 known as the neglect complaint, the Inquiry team has
24 established that he, in fact, took on responsibility for
25 the neglect complaint on 9th May.
26
1 Since Andrea McKee had informed DC Irwin of
2 Tracey Clarke's allegation about the tip-off on the
3 evening of 8th May in the so-called graveyard
4 conversation and DI Irwin told this Inquiry that he
5 reported this matter to his boss, as you might expect,
6 it being a very serious allegation, it must be that
7 DCS McBurney took responsibility for the neglect
8 complaint on the 9th May in full knowledge of the
9 tip-off allegation.
10 In our submission, it was not appropriate for the
11 same officer to be responsible for the supervision of
12 both the murder investigation and the allegations of
13 neglect and corruption on the part of RUC officers.
14 Now, everyone in authority, from the chief constable
15 and deputy chief constable, Blair Wallace, who was
16 responsible for discipline, to the Chair of the ICPC,
17 Paul Donnelly, assumed that the neglect complaint
18 subsumed the tip-off allegation, everyone, that is,
19 except the staff of the ICPC, and, in particular, the
20 deputy principal of the ICPC, Greg Mullan, who has
21 maintained before this Inquiry that the tip-off
22 allegation was never referred to the ICPC and,
23 inexplicably, that it fell outside the ICPC's remit.
24 Since no-one informed the Hamill family about the
25 tip-off allegation, they were blissfully unaware that
27
1 the ICPC had voluntarily restricted their role to the
2 investigation of neglect on the part of the RUC during
3 the GBH phase of the investigation.
4 Assistant Chief Constable Hall says that he did
5 refer the tip-off allegation to the ICPC during
6 a telephone conversation, but even if that did not
7 constitute a referral, the ICPC could, and should, have
8 asked the chief constable to make a referral, a request
9 which Paul Donnelly says, and Sir Ronnie Flanagan agrees
10 with him, would not have met with any resistance.
11 However, in our respectful submission, the focus
12 placed on whether the neglect complaint subsumed the
13 tip-off allegation has perhaps been slightly misplaced.
14 Although the Article 8 referral cannot be found, the RUC
15 press release, which was never challenged by the ICPC,
16 strongly suggests that the RUC believed that the ICPC
17 was supervising, not only the Article 7 complaint made
18 by the Hamill family, but the whole of the murder
19 investigation on foot of the mandatory Article 8
20 referral. If that is right, and we suggest that it must
21 be, especially in light of the reports produced by the
22 ICPC, then the Article 8 referral would have subsumed
23 the tip-off allegation and much more besides.
24 Thus it would appear that in complete dereliction of
25 duty the ICPC failed to supervise any aspect of the
28
1 murder investigation and restricted itself to a narrow
2 consideration of the neglect complaint made by the
3 Hamill family.
4 ACC White has told the Inquiry that DCS McBurney, as
5 the senior investigating officer for the murder, was not
6 under any kind of day-to-day supervision, nor was he
7 held to account, and that's at part 10, page 701. If
8 anyone within the RUC was in a position to know that the
9 ICPC was not supervising the murder investigation, it
10 would have been DCS McBurney, but if, as we have argued,
11 he was protecting Reserve Constable Atkinson, it would
12 not have suited him to draw the RUC's attention to the
13 ICPC's failure.
14 On a benign interpretation, one might view
15 DCS McBurney's own failure to perceive any potential
16 conflict of interest in his dual role as perfectly
17 understandable. After all, no-one else had a problem
18 with it. The only people who might have had a problem
19 with it were the Hamill family, but they did not know
20 about the tip-off allegation.
21 One might also conclude that DCS McBurney made
22 a judgment call to put the priority on the murder
23 investigation and to regard any disciplinary action
24 against Reserve Constable Atkinson as secondary and even
25 counter-productive to the murder investigation.
29
1 However, against that may be weighed his failure to
2 pursue other lines of enquiry against the alleged
3 perpetrators, particularly Allister Hanvey, and his
4 extraordinary failure after 30th May 1997 to keep close
5 tabs on the murder investigation.
6 Then there is the way in which he handled the
7 tip-off investigation, which, as we have argued, was
8 lacking in diligence and ultimately collusive.
9 What strikes us, and may also seem to the Inquiry as
10 being completely extraordinary, is that the chief
11 constable, having made an Article 8 referral to the
12 ICPC, no-one in either organisation felt any need or
13 took any steps to ensure that the ICPC was, in fact,
14 discharging its mandatory duty.
15 In our view, the person within the RUC who must bear
16 responsibility for this failure to ensure that the
17 behaviour of his officers came under scrutiny and were
18 held accountable must be the chief constable, who,
19 although he now has no recollection of it, accepts he
20 was made aware of the tip-off allegation on
21 12th May 1997.
22 Within the ICPC, Greg Mullan must take
23 responsibility for deciding that the tip-off allegation
24 fell outside the ICPC's remit, but both the chief
25 constable and Greg Mullan must take responsibility for
30
1 not considering the propriety of DCS McBurney's dual
2 role.
3 However, the Inquiry is entitled to, and in our view
4 should, look beyond the question of individual
5 responsibility. The entire system of police complaints
6 was flawed. Unlike today's Police Ombudsman, the ICPC
7 had no independent investigators of their own. When
8 a complaint was made against the RUC, the ICPC had to
9 appoint an RUC officer to investigate.
10 Such a lack of independence was the subject of
11 criticism at the time by international and domestic NGOs
12 and formed part of the political debate about the reform
13 of policing in the lead-up to the Good Friday Agreement
14 in 1998. Paul Donnelly, then Chair of the ICPC, has
15 described the culture within the ICPC as being
16 "Deferential to the point of being sycophantic towards
17 the RUC", and has also said that "The powers of
18 authority that were vested in the organisation were not
19 energetically exercised".
20 The ICPC was infamous for failing to uphold the vast
21 majority of complaints they investigated. Most lawyers
22 regarded making a complaint to the ICPC as a waste of
23 time. We suggest to the Inquiry that DCS McBurney had
24 absolutely nothing to fear from supervision or lack of
25 it by the ICPC.
31
1 In our submission, the RUC was grossly negligent in
2 not ensuring that its referral to the ICPC was acted
3 upon, while the ICPC was equally grossly negligent in
4 failing to carry out its statutory duty to supervise the
5 murder investigation, which included the tip-off
6 allegation. Whether those failures were deliberate is
7 a matter for the Inquiry to determine.
8 Looking now at the role of the Complaints and
9 Discipline Department, we find the attitude of Chief
10 Inspector Richard Bradley of Complaints and Discipline
11 towards Tracey Clarke's allegations about Reserve
12 Constable Atkinson incomprehensible. Her allegations
13 that a police officer had advised a suspect to dispose
14 of potential evidence in the form of clothing and
15 offered to keep that suspect advised about the police
16 investigation ought to have set off very loud alarm
17 bells. Instead, Chief Inspector Bradley dismissed her
18 allegations as hearsay and explained his failure to take
19 any action at all by saying that Tracey Clarke's
20 statement did not constitute a complaint.
21 He further contended that suspension of Reserve
22 Constable Atkinson would have been completely
23 unwarranted. That's at part 14, page 1071.
24 One is left wondering what an officer would have had
25 to do before he or she found themselves suspended.
32
1 Deputy Chief Constable Blair Wallace, who had overall
2 responsibility for discipline, and was the one who
3 decided whether any officer should be suspended, claimed
4 that he knew nothing about the allegations against
5 Reserve Constable Atkinson until, "Two or three months
6 after the event". By the "event", we take him to mean
7 Tracey Clarke's statement.
8 It may be true that he did not learn about her
9 statement for a period of time, but the question for the
10 Inquiry must be: once he did know about it, what, if
11 anything, did he do about it?
12 There is another issue that the lackadaisical
13 approach of Complaints and Discipline raises in our
14 minds. Given the very serious nature of the allegations
15 against Reserve Constable Atkinson, surely fairness
16 demanded he be informed and given an opportunity to
17 defend himself against them? It would appear that, not
18 only were the usual procedures not followed, but no
19 clear thought seems to have been given by anyone in
20 Complaints and Discipline as to whether they should be
21 followed and, if not, why not?
22 It is abundantly clear that DCS McBurney had nothing
23 to fear in the way of interference or insistence on
24 following the proper procedures from Complaints and
25 Discipline, who showed a total want of diligence in this
33
1 matter. Again, it is a matter for the Inquiry to
2 determine whether this amounted to negligence and, if
3 so, whether it was in any way deliberate.
4 The other person outside the RUC with some
5 responsibility for shaping the police investigation was
6 the office of the DPP. In our written submissions at
7 part 18, page 1303, we have argued that the DPP's
8 strategy in relation to prosecutions arising out of the
9 Hamill case was fatally flawed.
10 First, he decided to prosecute before he had
11 received all relevant papers, including the post-mortem
12 report and the complaint file.
13 Secondly, when Timothy Jameson and Tracey Clarke
14 resiled from their statements, he did not do enough to
15 ensure that there were no other lines of enquiry
16 available that could have secured a conviction,
17 particularly in Allister Hanvey and Stacey Bridgett's
18 cases.
19 Thirdly, he divorced the Atkinson complaint from the
20 murder trial and used Reserve Constable Atkinson as
21 a witness against Marc Hobson, knowing him to be
22 tainted.
23 Fourthly, he applied different credibility standards
24 to Reserve Constable Atkinson and Andrea McKee.
25 Fifthly, he divorced the case from the McKees from
34
1 that against the Atkinsons and Kenneth Hanvey.
2 Sixthly, he cropped the case against the Atkinsons
3 and Kenneth Hanvey on the basis that Andrea McKee may
4 have lied about a visit to the out-of-hours medical
5 centre without properly considering what the
6 consequences would have been for the committal hearing,
7 instead concluding that her credibility was fatally
8 undermined in relation to the trial.
9 In this regard, we respectfully adopt the compelling
10 arguments put forward by counsel for the Hamill family,
11 Barra McGrory QC at part 18, pages 1453-1454.
12 Lastly, the DPP did not prosecute Thomas Hanvey, who
13 supplied a false alibi for Allister Hanvey, or
14 Stacey Bridgett, whose blood was found on Robert Hamill,
15 but who denied being anywhere near him, for attempting
16 to pervert the course of justice.
17 The Chair has directed that the only issue in
18 relation to the DPP which falls within the Inquiry's
19 competence is that of due diligence. We should like to
20 emphasise that our criticisms of the acts and omissions
21 of the office of the DPP are made with that direction
22 firmly in mind. We do not argue that these acts and
23 omissions were wrong or involved making a wrong judgment
24 call, but that, taken collectively, they demonstrate
25 a lack of overall direction that amounts to a lack of
35
1 due diligence.
2 The DPP's position is pivotal in the criminal
3 justice system. He stands between the all-powerful
4 police and the powerless citizen. He also stands
5 between the dangerous criminal and the innocent victim.
6 The very essence of his role is the upholding of the
7 rule of law. It is his job to ensure that, so far as
8 possible, the innocent are not wrongly tried and the
9 guilty are convicted. We appreciate that that is
10 a difficult balance to maintain and that no DPP will get
11 every decision right.
12 However, when the Hamill case is put under the
13 spotlight, which is this Inquiry's very purpose, there
14 were indicators that should have alerted the Office of
15 the DPP to the need for the most anxious scrutiny.
16 Robert Hamill's murder was high profile. It was
17 obviously sectarian. Alleged suspects had paramilitary
18 connections. The murder took place amid the tensions
19 foreshadowing the highly contentious marching season and
20 against the background of the growing public debate
21 about the need for the reform of policing. The Hamill
22 family, who complained from the outset about the
23 desultory nature of the police investigation. There was
24 an allegation that an RUC officer had tipped off one of
25 the alleged perpetrators. Key witnesses had resiled
36
1 from their statements. The Secretary of State was
2 asking questions about the case. Even the most naive of
3 DPP's, and this DPP was by no means naive, should have
4 been aware that this was a contentious case and that the
5 actions of the RUC needed to be kept under close review.
6 This was not a case where stones could be left unturned.
7 We accept, of course, the DPP's proposition that it
8 is for the police to investigate and the DPP to
9 prosecute. However, the DPP is not a passive
10 participant in the criminal justice system. He knew
11 that this was a high profile and contentious case. He
12 knew that it was being alleged that an RUC officer had
13 colluded with an alleged suspect. He should, at the
14 very least, have satisfied himself that the police were
15 using due care and diligence in the sense of providing
16 him with the best possible evidence on which to base his
17 prosecutorial decisions. He should have ensured that he
18 had all the papers he needed. He should have satisfied
19 himself that other lines of enquiry, apart from the
20 statements of Tracey Clarke and Timothy Jameson, had
21 been thoroughly explored. He should have asked himself
22 whether an RUC officer who was liable to prosecution for
23 perverting the course of justice was a fit witness to
24 use in a criminal trial or whether, in fact, he should
25 have stood trial himself as an accessory. He should
37
1 have considered the wisdom of trying the McKees
2 separately from the Atkinsons and Kenneth Hanvey, thus
3 making himself reliant on the evidence of Andrea McKee,
4 herself convicted of perverting the course of justice.
5 Yet he does not appear to have done any of these
6 things. There is no sign of a firm hand on the tiller.
7 The office of the DPP seems to have sat back and let the
8 RUC guide the course of the prosecution policy, despite
9 all the factors which suggested that anxious scrutiny
10 was required.
11 It is for that reason we say that the DPP failed the
12 Hamill family and showed a want of due diligence.
13 It is, of course, for the Inquiry to decide, if they
14 are persuaded that diligence was lacking, whether that
15 diligence was negligent or deliberate.
16 Sir, that concludes our submissions in relation to
17 the DPP. We now turn to the final aspect of our case to
18 you, which is the issue of collusion covered in part 16
19 of the Inquiry team's consolidated closing submissions.
20 The ordinary meaning of the word "collusion" is
21 a conspiracy for improper purposes. In the context of
22 Northern Ireland, the term has come to embrace
23 a number of illegal activities on the part of members of
24 the security forces, the police, the army and the
25 intelligence services, and policies and practices on the
38
1 part of the state. These include conspiring with
2 paramilitaries to carry out assassinations, taking part
3 in such assassinations, collecting information on those
4 targeted by paramilitaries and passing it over to
5 paramilitaries, passing legitimately collected official
6 information to paramilitaries for illegitimate purposes,
7 failing to prevent paramilitary assassinations,
8 providing weapons to paramilitaries, assisting in the
9 commission of such killings, for example, by lifting
10 road blocks, failing to investigate the killings
11 rigorously, failing to prosecute those responsible for
12 such killings and failing to prosecute or otherwise
13 discipline those members of the security forces involved
14 in collusion.
15 It also can include using public interest immunity
16 certificates and claims at trials and inquests to
17 withhold information concerning alleged collusion,
18 refusing to make public the findings of a limited
19 number of official investigations into collusion and
20 allowing members of the security forces to carry out
21 illegal acts, whether in conspiracy with paramilitaries
22 or not, with impunity and hindering official
23 investigations of those acts.
24 Many of these activities, policies and practices
25 have been described and criticised by international
39
1 human rights groups and domestic NGOs such as ours over
2 a period of many years. They have also been criticised
3 by the United Nations and the European Court of Human
4 Rights.
5 Collusion is a very difficult thing to prove and to
6 measure, because of its illegal and clandestine nature.
7 No-one knows its true extent, but all the work done on
8 collusion throws up patterns of coincident behaviour
9 which suggests that, over the years, it became systemic.
10 It is significant the consultative group in the past
11 set up by the government to look at how Northern Ireland
12 can deal with its very troubled legacy and move forward
13 into a better future cited collusion as an issue that
14 must be examined. Our own research suggests that it is
15 much more widespread than has yet been acknowledged and
16 that we can only see the tip of the iceberg.
17 At first, successive governments denied that
18 collusion existed, but today it is widely accepted that
19 collusion has taken place, partly thanks to the
20 ground-breaking report issued by Baroness Nuala O'Loan
21 when she was the Police Ombudsman following her
22 investigation into the death of Ronan McCall junior and
23 to the work done by Lord Stevens in the case of
24 Patrick Finucane. The Stevens 3 summary report was the
25 first unequivocal public admission by an establishment
40
1 figure that collusion was a reality. Lord Stevens said:
2 "My enquiries have highlighted collusion, the wilful
3 failure to keep records, the absence of accountability,
4 the withholding of intelligence and evidence and the
5 extreme of agents being involved in murder. These
6 serious acts and omissions have meant that people have
7 been killed or seriously injured."
8 Of particular relevance to the case of Robert Hamill
9 was Baroness Nuala O'Loan's report, which looked specifically
10 at collusion between RUC Special Branch officers and the
11 UVF. Not only did she find that just one agent had been
12 involved in so many murders and attempted murders that
13 he could only be described as a serial killer, but she
14 also uncovered an appalling catalogue of collusive acts
15 with which we have no doubt that this Inquiry is already
16 familiar.
17 Our point, sir, is that collusion has been
18 officially recognised and documented and that, if there
19 was collusion in Robert Hamill's case, it cannot be
20 looked at in isolation. Collusion is not only about
21 protecting informants. It is the product of the mindset
22 that believes in the protection of the prevailing order
23 at all costs. The role of the RUC in combating
24 terrorism meant that embedded in its culture and ethics
25 was a very strong commitment to preserving the status
41
1 quo. Collusion does not require mutuality or even any
2 overt agreement between the participants. All that is
3 required is a mutual agenda.
4 Those who participate in collusion often do not
5 perceive themselves as having done anything wrong or
6 having crossed the line between legality and illegality,
7 because they believe they are acting for the best and
8 that the ends justify the means. Collusion thrives best
9 in an environment of impunity where mechanisms for
10 accountability are weak, where there is no real scrutiny
11 and where there are no consequences attendant upon
12 wrongdoing. Above all, collusion thrives in
13 organisations where everyone is of like mind, shares
14 a common background and a common purpose and especially
15 feels under threat from forces outside the organisation.
16 Members of such organisations instinctively defend each
17 other and the organisation as a whole. When any
18 allegation is made against the organisation or
19 individuals within the organisation, they close ranks.
20 Sir, in our submission, the RUC was just such
21 an organisation. Much has been made in the written
22 closing submissions on behalf of serving and retired
23 police officers, of Sir Ronnie Flanagan, and of the RUC,
24 about the need to recognise the difficulties and dangers
25 faced by the RUC in 1997, the dangers applying the
42
1 benefit of hindsight and the unfairness of second
2 guessing judgment calls.
3 We accept all of those points and have been mindful
4 of them when examining what this Inquiry has discovered
5 concerning Robert Hamill's murder and the investigation
6 of that crime.
7 There have been one or two moments in the course of
8 this Inquiry when an uglier side of policing has been
9 revealed. For example, Detective Constable
10 Paul McCrumlish said in his statement that the
11 collective view of all the officers involved in the
12 investigation was that Robert Hamill had got what he
13 deserved. He said, and I quote, "I recall that the
14 general feeling of the whole investigation team was that
15 Robert Hamill had been the author of his own
16 misfortune". Sir, that's at page 00667 of the core
17 bundle.
18 Chief constable Sir Ronnie Flanagan absolutely
19 denied having suggested to senior civil servant
20 Anthony Langdon that Robert Hamill's own family might
21 have added to his oxygen starvation by cradling his head
22 or that Diane Hamill had her own agenda to discredit the
23 RUC. That's at page 01200.
24 We can think of no possible reason why
25 Anthony Langdon should have lied about this. Those two
43
1 examples give us a glimpse of the underlying attitudes
2 that pervaded this investigation from, it would seem,
3 top to bottom. Such attitudes are indicative, you may
4 feel, of an approach that was hardly conducive to good
5 police work or the exercise of due diligence. However,
6 be that as it may, we say that it is the actions of the
7 RUC and other agencies such as the ICPC and the office
8 of the DPP which speak for themselves.
9 Sir, we have already submitted that the golden hours
10 of the investigation were squandered, that Reserve
11 Constable Atkinson covered up for Allister Hanvey, that
12 DCS McBurney took decision after decision which
13 undermined his own investigations and protected Reserve
14 Constable Atkinson, and that both the ICPC and the DPP
15 failed to exercise due diligence.
16 What is conspicuous by its absence from all the
17 evidence you have seen and heard is any genuine concern
18 to bring those who murdered Robert Hamill to book. Sir,
19 I hope you will bear with us if we briefly recite the
20 chain of what we believe are the significant events in
21 the sorry history of Robert Hamill's case. It will not
22 reveal anything to you that you do not already know, but
23 bearing in mind what we have already said about
24 collusion, we believe that, put at its lowest, to anyone
25 who is familiar with patterns of collusion in
44
1 Northern Ireland, it is a chain of events that suggest
2 that collusion may be at issue.
3 A Land Rover is deployed to Portadown town centre
4 specifically tasked to prevent public disorder.
5 Thomas Mallon alerts the crew to the fact people are
6 leaving St Patrick's Hall. The crew does not act on
7 this warning other than to remain at the town centre
8 junction near Thomas Street and Woodhouse Street instead
9 of proceeding to the bottom of the town, however, they
10 do not place the Land Rover in the most effective
11 position for preventing or observing any public
12 disorder. Some of the crew claim to have been chatting
13 to two of the suspects immediately prior to the attack.
14 A vicious sectarian attack is made on Robert Hamill
15 and D by Loyalists. The crew fails to prevent this
16 attack or to intervene quickly enough to prevent
17 Robert Hamill's injuries from becoming fatal.
18 Constable A detains Wayne Lunt, but let's him go. She
19 does not record this fact. She fails to re-arrest
20 Wayne Lunt after Colin Prunty identifies him as one of
21 the people involved in the attack on Robert Hamill. The
22 crew goes off duty without even bothering to report the
23 attacks. Two members of the crew, Reserve Constable
24 Atkinson and Constable Neill, when they are recalled to
25 work to make statements, fail to name another suspect,
45
1 Allister Hanvey, as having been present at the scene.
2 The first senior officer on the scene, Inspector McCrum,
3 fails to debrief his officers properly or to take
4 an active leadership role. He refuses to accept any
5 responsibility for these failings.
6 The crime scene is not secured until five and a half
7 hours after the attack. The chief constable of the RUC
8 refers the case to the ICPC. The Hamill family
9 independently lodge a complaint with the ICPC about
10 neglect of duty in the police investigation.
11 Robert Hamill dies of his injuries and DCS McBurney is
12 appointed to oversee both the murder investigation and
13 the neglect complaint.
14 The ICPC pursues the Hamill family complaint, but
15 not the chief constable's referral, thus failing to
16 supervise the murder investigation. Reserve
17 Constable McCaw overhears talk about the attack at the
18 McKees' Tae Kwon Do club and reports it. Andrea McKee
19 is interviewed informally. This leads to Tracey Clarke,
20 a vulnerable juvenile, being interviewed, but her
21 statement is taken in circumstances which would have
22 called the reliability of her evidence into serious
23 question, had she ever appeared in court.
24 Timothy Jameson, whose family is locally powerful
25 and has paramilitary connections, is also interviewed
46
1 and corroborates some of Tracey Clarke's evidence.
2 One of Tracey Clarke's allegations is that Reserve
3 Constable Atkinson advised her then ex-boyfriend,
4 Allister Hanvey, to dispose of the clothing he wore on
5 the night of the attack and kept him informed about the
6 police investigation. Six suspects are arrested
7 including Allister Hanvey and Dean Forbes and
8 Stacey Bridgett, but not Timothy Jameson, nor his
9 associate Andrew "Fonzy" Allen, whom Timothy Jameson had
10 named as a perpetrator.
11 The search of Allister Hanvey's house is perfunctory
12 and does not search for evidence that clothing has been
13 destroyed. Thomas Hanvey gives Allister Hanvey a false
14 alibi for the night of the attack. He is not prosecuted
15 for perverting the course of justice. The ICPC is told
16 of the allegation against RC Atkinson but unaccountably
17 decides it does not fall within their remit. Reserve
18 Constable Atkinson's telephone records are checked, but
19 he is not suspended from duty, even when the records
20 show that two telephone calls were made between the
21 Atkinson and Hanvey households in the aftermath of the
22 attacks. No attempt is made to break Allister Hanvey's
23 alibi by interviewing witnesses who saw him at a party
24 when he says he was at Thomas Hanvey's home.
25 All six suspects choose to be housed in Loyalist
47
1 wings of the prison while on remand. Tracey Clarke's
2 allegations are not put to Reserve Constable Atkinson
3 for over five months. He denies them. He is then not
4 questioned about the allegations again for a further
5 month, during which time he concocts a false alibi with
6 the McKees, who later admit helping him and are
7 convicted of perverting the course of justice.
8 DCS McBurney allows Andrea McKee to make a lying
9 statement, knowing it to be untrue, but she is not
10 challenged. It is also alleged that RC Atkinson's wife
11 Eleanor and Kenneth Hanvey provided false alibis, but
12 they deny this.
13 Tracey Clarke and Timothy Jameson refused to give
14 evidence at the trial or the inquest. Tracey Clarke
15 does not say that her statement was untrue, but only
16 that she is afraid of Loyalist retaliation. The case
17 against five of the six suspects collapses.
18 Stacey Bridgett, whose blood was found on Robert Hamill,
19 but denies having been anywhere near him is not charged
20 with conspiracy to pervert the course of justice, nor is
21 the blood evidence put to him before all charges against
22 him are dropped. Marc Hobson stands trial and is
23 convicted of the minor offence of affray.
24 RC Atkinson is used as a prosecution witness, even
25 though the RUC and the DPP both know that he is
48
1 an alleged accessory to murder. Pressure is brought to
2 bear by the Hamill family on the Secretary of State, and
3 the NIO in turn puts pressure on the chief constable,
4 who fails to tell the Secretary of State about the
5 Atkinson allegation. DCS McBurney interviews
6 Andrea McKee, but not under caution, thus risking
7 a retraction.
8 Once PONI takes over from the ICPC they express
9 a complete lack of confidence in DCS McBurney and he is
10 replaced by Colville Stewart as the senior investigating
11 officer. Reserve Constable Atkinson is described to
12 PONI officers as possibly having Loyalist sympathies.
13 The McKees stand trial separately from the Atkinsons and
14 Kenneth Hanvey and are convicted. The case against the
15 Atkinsons and Kenneth Hanvey collapses after
16 Andrea McKee apparently lies about a visit to
17 an out-of-hours medical centre, even though her story
18 about missing the committal hearing because of her son's
19 ill-health is substantially true. The DPP drops the
20 case, even though it is unlikely that the committal will
21 collapse and even less likely that this alleged lie will
22 significantly affect Andrea McKee's credibility at
23 trial.
24 One of the Attorney General's reasons for approving
25 the collapse of the trial is to speed up the
49
1 establishing of this Inquiry and to allay criticism
2 about the delay in sitting up an Inquiry into the murder
3 of Patrick Finucane.
4 Sir, in our submission, that is a chain of events
5 tending only in one direction: downhill all the way.
6 The Hamill family has lost a loved one and no-one in
7 authority with the exception of PONI, who played only
8 a limited role, did anything to try to stop that
9 downward trajectory other than the Hamill family
10 themselves, without whose quest for truth the police
11 investigation would have run into the sand and none of
12 us would be sitting here today.
13 Our organisations are sorry that the criminal just
14 justice system failed them so badly and we salute the
15 Hamill family's courage.
16 There are only two conclusions that can be drawn
17 from such an inadequate police investigation. Either
18 the RUC was a hopelessly incompetent police force,
19 incapable of the detection of serious crime, or the
20 majority of officers simply did not care what happened
21 to Robert Hamill and had no desire to find out the
22 truth.
23 If the Inquiry conclude that the latter is the case,
24 then they will need to consider whether the failure of
25 the officers concerned was a matter of individual
50
1 responsibility or whether the failings were
2 institutional.
3 If, as we believe, the RUC as an institution failed
4 Robert Hamill, then we invite the Inquiry to consider
5 why that was and whether institutionalised sectarianism
6 within the RUC and collusion accounted for its failure.
7 Finally, however culpable certain individuals may
8 have been for the wholesale failure into Robert Hamill's
9 murder, and regardless of whether their negligence was
10 deliberate or not, we adopt the cogent written arguments
11 put forward by counsel for the Hamill family,
12 Barra McGrory QC, at part 16, pages 1274-1287, that the
13 ultimate responsibility for that wholesale failure must
14 lie with the then chief constable of the RUC,
15 Sir Ronnie Flanagan.
16 Sir, that concludes our oral submissions, which we
17 hope are of some assistance to this Inquiry in your
18 deliberations
19 THE CHAIRMAN: Thank you very much. We are going to have
20 a break, but may I just enquire if there are any who
21 wish to ask Mrs Winter any questions? If they don't,
22 then we do not need to detain her longer.
23 MR UNDERWOOD: I think we may have lost the link anyway.
24 THE CHAIRMAN: It is only right, if people wish to ask
25 questions, they should have the opportunity. I don't
51
1 want to hear any questions now, but simply to know
2 whether we need to ask Mrs Winter to wait now or not.
3 MR McCOMB: If I may run it past you, sir. There is really
4 just one matter of factual inaccuracy which I think, in
5 fairness, I should deal with. There may be others that
6 others wish to ...
7 It was at page 46, line 18 of the present
8 time-line where she came out with the totally
9 unwarranted, in my respectful submission, suggestion
10 that Timothy Jameson and his father had paramilitary
11 connections. There has been no evidence of that. It is
12 just one of many perhaps unwarranted pieces of
13 gratuitous information which has come from the BIRW.
14 MR UNDERWOOD: To be fair, I think what the transcript says
15 and what was said was the family had paramilitary
16 connections. I think that was indeed what Mr McBurney
17 said when he was interviewed by the Inquiry and he was
18 asked why he didn't put protection measures in place for
19 Timothy Jameson. He said the family had paramilitary
20 connections and it, I paraphrase, would be the worse for
21 anybody who interfered with him.
22 THE CHAIRMAN: Yes. Thank you.
23 MR WOLFE: Sir, I don't think I should let the opportunity
24 go without saying there are many aspects of the British
25 Irish Rights Watch and CAJ joint submission with which
52
1 my client will disagree. I don't think it is my role,
2 I have to say, to question an advocate in terms of what
3 she said, but in due course next week I will respond to
4 those submissions in some detail.
5 THE CHAIRMAN: Well, Mrs Winter is in the dual position
6 really of advocate and witness. It is only if you feel
7 it necessary.
8 MR WOLFE: Yes. I am grateful for that. Thank you.
9 MR ADAIR: I am adopting the same approach, Chairman. There
10 is one matter I would like to ask just in relation to
11 the last comment that was made.
12 The proposition, Ms Winter, that you gave about your
13 overall view of this. There are two alternatives. That
14 the RUC was a hopelessly incompetent force incapable of
15 detecting serious crime. That's one alternative. Is
16 that right?
17 MS WINTER: Yes.
18 MR ADAIR: Have you seen the figures for the RUC's detection
19 of Loyalist and Republican crime during the 1990s? Have
20 you seen those figures?
21 MS WINTER: I have, although would I not be able to remember
22 what I had seen, if you see what I mean.
23 MR ADAIR: Are you aware that they detected murder after
24 murder after murder of Catholics by Protestants and
25 Protestants by Catholics? Do you know that?
53
1 MS WINTER: Yes. I was putting two alternatives to the
2 Panel, and, in my submission, it is for them to decide
3 which of those alternatives, if either, is right.
4 MR ADAIR: Those not what I am asking you about. You have
5 said there are two alternatives, that either the RUC was
6 a hopelessly incompetent organisation, incapable of
7 detecting serious crime. That is one proposition you
8 are asking this Panel to consider, isn't it?
9 MS WINTER: I have put two propositions to the Panel.
10 MR ADAIR: I know you did. Isn't that one of them? I know
11 you put two. Isn't that one of them?
12 MS WINTER: Yes, that's certainly a proposition I put to
13 them, but it is for them to decide which of the two
14 alternative propositions they think is more likely.
15 THE CHAIRMAN: Mr Adair is just asking you about the
16 evidence in support of that proposition. He is asking
17 if you know of those figures.
18 MS WINTER: I know. I am not advocating that proposition,
19 sir. I am simply saying that, when you look at the
20 chain of events that we have described, that is one
21 conclusion one could come to.
22 MR ADAIR: Are you aware from the figures this Panel have --
23 I don't have them in front of me at the moment myself --
24 are you aware from the figures this Panel have that the
25 RUC have investigated hundreds, upon hundreds upon
54
1 hundreds of Protestants, Loyalist paramilitaries for
2 being involved in attacks on Catholics? Now are you
3 aware of that?
4 MS WINTER: Yes.
5 MR ADAIR: Do you commend them for it? Do you commend them
6 for it?
7 MS WINTER: I don't think it is my role to commend or not
8 commend them for doing their job.
9 MR ADAIR: I am asking you.
10 THE CHAIRMAN: Can I rephrase the question? Do you approve
11 of their achievement?
12 MS WINTER: My approval is tempered by the fact there are so
13 many unsolved murders in Northern Ireland and we work on
14 many of those cases and we see many instances where
15 opportunities to solve a crime have been lost.
16 MR ADAIR: Let me ask you a straight question.
17 MS WINTER: Although it is obvious -- can I not finish what
18 I am saying?
19 MR ADAIR: Let me ask you what the Chairman asked. Do you
20 approve of the fact that the RUC have brought many
21 Loyalists to book for the murder of Catholics? Do you
22 approve of that or not?
23 MS WINTER: I think whether I approve or not is irrelevant.
24 MR ADAIR: So you are not going to answer?
25 MS WINTER: I of course approve of the police doing their
55
1 job.
2 MR ADAIR: No further questions.
3 MS DINSMORE: Mr Chair, for the record I would take exactly
4 the same stance as my learned friend Mr Wolfe.
5 THE CHAIRMAN: Very well.
6 MR EMMERSON: Sir, I wonder if I might just put one or two
7 points of clarification to Ms Winter in her capacity as
8 a witness?
9 MR UNDERWOOD: Forgive me. I don't know where we got the
10 idea Ms Winter is a witness. She is not.
11 MR EMMERSON: From the Chair.
12 MR UNDERWOOD: In that case, I respectfully disagree with
13 it.
14 MR EMMERSON: The Chairman has invited questions for
15 Mrs Winter in her capacity as a witness.
16 THE CHAIRMAN: I think it is difficult not to regard
17 Mrs Winter in some realms a witness. While she is
18 saying, "These are alternatives I put before you", she
19 seems to speak also as though her mind goes with much of
20 what she says.
21 MR UNDERWOOD: She is not on oath.
22 THE CHAIRMAN: No, that's true.
23 MR UNDERWOOD: She has not come prepared with documents.
24 Her submissions are going to be subjected to examination
25 in the submissions of others and, of course, will be
56
1 subjected to a reference to the documents and materials
2 that you have heard. If anybody wants to cross-examine
3 her, then I would respectfully suggest she is given
4 an opportunity to see the documents upon which she is
5 being cross-examined and is put on oath.
6 MR EMMERSON: Can I indicate I am not intending to
7 cross-examine her on any documents, but merely seeking
8 clarification of the submissions that she has made.
9 Now, whether that is put to her in her capacity as
10 a witness or in her capacity as an advocate with myself
11 seeking clarification how she puts the case --
12 THE CHAIRMAN: If you say what is the clarification you
13 want.
14 MR EMMERSON: There were three points I wanted to clarify.
15 May I address the question to Ms Winter with your
16 permission.
17 THE CHAIRMAN: Yes, but just wait before you answer,
18 Mrs Winter.
19 MR EMMERSON: Mrs Winter, you made the criticism directed
20 towards the Office of the Director of Public
21 Prosecutions that it is regrettable that the trial of
22 the McKees preceded the prosecution of Atkinson and
23 others.
24 What I want to ask you, first of all, is what do you
25 say should have happened?
57
1 THE CHAIRMAN: I think I can answer that question. If you
2 tried to prosecute them all together, you would have got
3 a committal for trial of the McKees and there would have
4 been no committal for trial for the others, because
5 there would not have been any evidence against him.
6 MR EMMERSON: Precisely, sir.
7 THE CHAIRMAN: Very well.
8 MR EMMERSON: The second point I wanted to raise with you,
9 Mrs Winter, was you suggest that the DPP was at fault in
10 deciding to prosecute before receiving a post-mortem
11 report. Who is it you say he decided to prosecute
12 before a post-mortem report was received.
13 MS WINTER: Am I to answer that, sir?
14 THE CHAIRMAN: Do you know the answer to the question? If
15 you don't, just say so.
16 MS WINTER: I believe that the decision to prosecute the
17 original six suspects was made before the post-mortem
18 report had been received and certainly before the
19 complaint file had been received.
20 MR EMMERSON: You know enough about the evidence to be aware
21 that the six suspects were the subject of a police file
22 that was transmitted to the office of the DPP end of
23 July, beginning of August --
24 MS WINTER: Yes.
25 MR EMMERSON: -- with a recommendation to prosecute.
58
1 Correct?
2 MS WINTER: Yes.
3 MR EMMERSON: You know, do you, that in respect of five of
4 those individuals the prosecutions were, in fact,
5 discontinued by the DPP for various different reasons?
6 MS WINTER: Yes.
7 MR EMMERSON: And by the time any decision was taken to
8 prosecute anybody for murder, the only person being
9 Marc Hobson, the post-mortem report was available?
10 MS WINTER: Yes. I see the point you are making.
11 MR EMMERSON: I am trying to understand your criticism and
12 what it means.
13 THE CHAIRMAN: I think really it will be a matter you will
14 be able to make submissions upon. It depends whether
15 there was any lacuna in the evidence because of the
16 absence of a post-mortem report.
17 MR EMMERSON: Yes. Finally this. Another of the criticisms
18 that you levelled at the DPP was that after
19 Tracey Clarke and Timothy Jameson's statements had been
20 withdrawn you said the DPP didn't do enough to ensure
21 that there were no other lines of enquiry to secure
22 a conviction against Hanvey and Bridgett.
23 Are there any specific lines of enquiry you suggest
24 the DPP should have advised in respect of either of
25 those two individuals and, if so, what?
59
1 MS WINTER: Well, there was the whole question of
2 Allister Hanvey's alibi. In fact --
3 MR EMMERSON: Forgive me. Once Tracey Clarke's statement
4 and Timothy Jameson's statements had been withdrawn, the
5 judgment was reached that there was no evidence
6 sufficient to continue with the prosecution for murder.
7 So the alibi would have been irrelevant, wouldn't it?
8 MS WINTER: I am sorry. The reason I am pausing is because
9 of the way that you characterised what I had said.
10 I didn't actually say that -- I didn't say that
11 Allister Hanvey and Stacey Bridgett should have been
12 prosecuted. I said that not enough steps were taken to
13 see what other evidence there might be apart from those
14 two statements.
15 MR EMMERSON: What other steps do you say should have been
16 taken?
17 MS WINTER: There was evidence that put certain suspects at
18 the scene of the crime. There were allegations made by
19 other witnesses that suggested that some of them had
20 lied about their whereabouts and so on. There are a lot
21 of issues that were not followed at all by police, and
22 what does not appear from the evidence is that the DPP
23 at any time asked the police to look further than those
24 two statements.
25 MR EMMERSON: Can I just be clear? Do the organisations you
60
1 represent accept that after those two statements could
2 no longer be used in evidence there was insufficient
3 evidence to continue the prosecution of Forbes, Hanvey
4 and Robinson?
5 MS WINTER: Yes.
6 MR EMMERSON: Does your organisation accept that those men
7 had been in custody for six months and a decision,
8 therefore, had to be made at that stage as to whether
9 prosecution could continue?
10 MS WINTER: Yes, of course it did.
11 MR EMMERSON: Does your organisation accept it would have
12 been unlawful to continue with the prosecution if there
13 was insufficient evidence?
14 MS WINTER: Yes.
15 MR EMMERSON: Thank you very much.
16 THE CHAIRMAN: Yes, Mr McGuinness?
17 MR McGUINNESS: Sir, I intend to make a number of points
18 tomorrow disagreeing with some of the submissions made
19 by the BIRW and taking issue with what they say the
20 evidence is, but I don't know that that submission
21 necessarily requires me to put it to this witness, but
22 I would just want to let that be known.
23 THE CHAIRMAN: Thank you. Very well.
24 Then thank you very much, Mrs Winter.
25 We will take a quarter of an hour's break now.
61
1 (3.35 pm)
2 (A short break)
3 (3.50 pm)
4 THE CHAIRMAN: Yes, Mr McKillop.
5 Closing submissions by MR McKILLOP
6 MR MCKILLOP: Mr Chairman, members of the Panel, I make this
7 submission on behalf of D, E, F and Colin Prunty.
8 In our written submissions we focused on the
9 potential criticisms or adverse inferences which the
10 Panel may draw against the aforementioned witnesses.
11 If I could just briefly outline what those potential
12 criticisms are. In respect of D, E and F, they face two
13 possible criticisms. One is that they belonged to
14 a group which initiated the fight which led to
15 Robert Hamill's death. Secondly, which really flows
16 from the first, that they then falsely informed the
17 police that they were set upon without warning.
18 Colin Prunty, if you like, faces the more serious
19 potential criticism, in that it is indicated that he was
20 involved in starting the fight which led to
21 Robert Hamill's death.
22 Now, our written submissions concentrated on the
23 conflicting evidence that arose around those issues and,
24 in particular, how the trouble started at the bottom
25 Thomas Street and the junction of Market Street. That
62
1 involved analysing, not only the accounts of my clients,
2 but those other people who were with us or in our close
3 proximity, in other words, Maureen McCoy as well, and
4 taking the view and analysing the accounts of those
5 other witnesses who gave a completely different version
6 of events of how the trouble started.
7 Mr Chairman, I would just say our written
8 submissions in respect of those commence at page 222 in
9 the composite written submissions. We do not propose to
10 rehearse the analysis that we made in respect of the
11 various witnesses in respect of this account.
12 What I briefly wish to address the Panel on relates
13 to three matters that arise out of other people's
14 written submissions.
15 The first issue relates to those persons who
16 indicate that my clients were the trouble-makers being
17 described in the composite written submissions as being
18 independent witnesses. This arises at pages 93, 221,
19 270 of the composite written submissions.
20 First of all, if I could just briefly refer to the
21 first witness, P42, of which much has been said already
22 by Mr McGrory yesterday. This is a witness who
23 provides, in our respectful submission, an account which
24 is pro-police. His account is at [01038].
25 THE CHAIRMAN: Yes.
63
1 MR MCKILLOP: The relevant section I think is the third last
2 paragraph about three-quarters of the way down:
3 "The police tried to break up the small crowd,
4 without siding with either side, trying to calm the
5 situation, but having no success, they had to call for
6 more police to control the crowd."
7 Now, it subsequently transpired after P42's identity
8 became known that his newly-found girlfriend at that
9 time was the daughter of a retired police officer who,
10 in fact, had served in the Portadown area for
11 a number of years.
12 THE CHAIRMAN: Yes.
13 MR MCKILLOP: The next startling matter we wish to bring to
14 the Panel's attention is, when P42 was being interviewed
15 on 21st January 2006 by the Inquiry interviewers, he
16 stated that his anonymous letter was, and this is
17 a quote, "a statement there with a sort of an agenda".
18 Of course, in our respectful submission that begs
19 the question what the agenda was. In our respectful
20 submission, the answer may lie in the date on which the
21 letter was formally drafted and composed. You will be
22 aware that P42 did allege that the letter was written
23 the same day as the incident. My learned friend
24 Mr McGrory has already referred to the fact it is
25 somewhat strange that the letter commences on the day of
64
1 the fight. I would even draw the Panel's attention to
2 the fact that the letter ends:
3 "To my knowledge, this is as much as I can remember
4 about the night on which the fight took place."
5 Again, we say that would indicate that the letter
6 was not written as contemporaneously as P42 alleges.
7 THE CHAIRMAN: Why do you say that? If, according to P42,
8 this statement is made some time on the Sunday, then the
9 "night" when it took place could be the night of
10 Saturday, Sunday, could it not?
11 MR MCKILLOP: Yes. We would say in our respectful
12 submission it would be more likely to say "last night".
13 THE CHAIRMAN: So it turns on the use of "the night on
14 which" instead of "last night"?
15 MR MCKILLOP: Yes. Mr Chairman, you will see that the
16 letter is stamped with a date 29th May 1997.
17 THE CHAIRMAN: Yes.
18 MR MCKILLOP: The evidence was by P42 that, once the letter
19 was composed, he had given it to his future
20 father-in-law, who then apparently brought it to the
21 police the next day. So what we say, Mr Chairman, is
22 that if the letter was not written for a number of weeks
23 after the event, the situation was that there was
24 criticism in the public domain about the police
25 inactivity on the night of this incident, and that may
65
1 explain what we say the agenda was, which P42 referred
2 to in his Inquiry interview.
3 We also say, Mr Chairman, and it is relevant, that
4 in his interview -- and this was at page 39 of his
5 Inquiry interview -- he indicated that he probably would
6 not have provided an anonymous statement, had he not
7 spoken to P41 or his future father-in-law. In his
8 evidence he indicated that it was his father-in-law who
9 told him that it would be better to let the police know
10 anonymously what happened on the night of this incident.
11 So we say there is a query there about whether or
12 not -- how forthcoming P42 himself is about making this
13 particular statement and whether or not his future
14 father-in-law is having a guiding hand in the
15 background, and, therefore, that would have a direct
16 bearing on how independent or not he is.
17 THE CHAIRMAN: So we need to look at the father-in-law's
18 evidence and -- is it Hewitt?
19 MR MCKILLOP: Maurice Hewitt. He was not called as
20 a witness.
21 THE CHAIRMAN: He took the statement. Just remind me, was
22 he a friend or a police officer?
23 MR MCKILLOP: He was a retired police officer.
24 THE CHAIRMAN: Yes, I see.
25 MR MCKILLOP: In fact, just before I leave this point, he
66
1 was, in fact, approached by DC McCrumlish on
2 5th June 1997. Perhaps if we could have page [03600]
3 up, please.
4 It appears that Constable McCrumlish spoke to
5 Maurice Hewitt on 5th June 1997. You will see that took
6 place at his home and:
7 "He indicated he had spoken to a witness who had
8 witnessed the fight in Thomas Street/Market Street. He
9 stated the witness would not want to be interviewed.
10 Mr Hewitt undertook to have the witness outline his
11 version of the assault on paper and would hand it to the
12 police when ready."
13 We would say two things by that. Even by 5th June
14 1997, that tends to imply that the account still has to
15 be written. The second thing we say is that
16 Maurice Hewitt has firmly taken the decision that the
17 witness would not want to be interviewed. He's not
18 saying, "I know he is reluctant to come forward, but
19 I will go and speak to him again, in light of what you
20 have asked me, to see whether or not he is prepared to
21 come forward".
22 He seems to be taking a firm decision there and then
23 that the witness would not want to be interviewed.
24 THE CHAIRMAN: Yes.
25 MR MCKILLOP: The second witness then is William Jones. We
67
1 say that the relationship that he has with David Woods
2 precludes him from being considered an independent
3 witness. As the Panel all know, David Woods was
4 Mr Jones' then partner's brother, who was to
5 subsequently become his brother-in-law.
6 THE CHAIRMAN: That can do no more than call for caution on
7 our part in looking at his statement. It is not
8 a reason for saying he is therefore unreliable.
9 MR MCKILLOP: Not on its own, but, hopefully, in relation to
10 the second point I wish to make about Mr Jones, that
11 this is a person who allegedly witnessed this event, was
12 able to give three very detailed descriptions of three
13 of the males he said was involved in that event. I am
14 straying, Mr Chairman. I am conscious that I am
15 straying on to points I have already made in my written
16 submissions, but I will try to be as brief as possible.
17 He is also aware, because he tells us this in his
18 interview statement, that one of the persons that he
19 identifies he realises was Robert Hamill. We also know
20 from --
21 THE CHAIRMAN: Forgive me until I just see what that
22 signifies. Is he saying in the statement that he knew
23 Robert Hamill by sight or simply that he realises that
24 one man he has described is the dead man?
25 MR MCKILLOP: Yes.
68
1 THE CHAIRMAN: That's all?
2 MR MCKILLOP: Yes. He doesn't ascribe to him whether he was
3 the person that struck the blow, was shouting sectarian
4 abuse, but one of the three people he described in his
5 statement he recognised was -- he realised was
6 Robert Hamill.
7 Also, to put the significance --
8 THE CHAIRMAN: Just ...
9 MR MCKILLOP: Sorry.
10 THE CHAIRMAN: But he doesn't say which of the three he has
11 described he is.
12 MR MCKILLOP: No.
13 SIR JOHN EVANS: He was described as number 1, wasn't he?
14 MR MCKILLOP: Yes, but that part of his interview when he
15 says -- yes, I accept that description number 1 would
16 appear to be the one that would be most suited to
17 Mr Hamill, but he doesn't actually say that in his
18 interview statement. He says that he recognised -- he
19 realised that one of the three persons that he saw was
20 Robert Hamill. He doesn't say whether it was one, two
21 or three.
22 THE CHAIRMAN: So it is really a matter for us to look at
23 the description of Robert Hamill and the three
24 descriptions to see if there is any match with any them
25 and, if so, what significance we relate to that?
69
1 MR MCKILLOP: My point is slightly different, Mr Chairman.
2 My point is this: notwithstanding that he has witnessed,
3 allegedly witnessed, a serious assault in which his
4 partner's brother has been assaulted, and
5 notwithstanding all of the media outcry that followed
6 this particular event, Mr Jones never makes himself
7 available to the police. That's the point.
8 The first we hear of Mr Jones is following the
9 arrest of Mr Woods, which was on 15th May 1997. During
10 that interview, Mr Woods gives an account of what he
11 said happened to him in Thomas Street --
12 THE CHAIRMAN: Yes.
13 MR MCKILLOP: -- which ultimately ended in Mr Woods being
14 rescued off the street by his sister and his sister's
15 boyfriend.
16 THE CHAIRMAN: Yes.
17 MR MCKILLOP: Mr Woods, following giving that account to the
18 police, was detained in custody overnight whilst the
19 police went and checked that story, because it was on
20 16th May 1997 that both Carol Ann Woods and
21 William Jones made their first police statements.
22 THE CHAIRMAN: Is that before or after Jones' release?
23 MR MCKILLOP: Woods is arrested on the 15th. He makes his
24 allegations on the 15th. It is close to midnight by the
25 time that interview ends. He's kept in custody
70
1 overnight whilst the police go and interview his sister
2 and Mr Woods.
3 THE CHAIRMAN: In other words, they were interviewed before
4 he was released?
5 MR MCKILLOP: Yes.
6 THE CHAIRMAN: Thank you.
7 MR MCKILLOP: That, Mr Chairman, is the point.
8 THE CHAIRMAN: Yes.
9 MR MCKILLOP: Because their statements were sufficient to
10 secure his release without charge.
11 THE CHAIRMAN: Now, do you say that because that is the
12 evidence or is that an inference you ask us to draw?
13 MR MCKILLOP: That's the evidence, the undisputable
14 evidence, as I understand it.
15 THE CHAIRMAN: An officer has said, "That's why we released
16 him".
17 MR MCKILLOP: No.
18 THE CHAIRMAN: That's what I am asking you.
19 MR MCKILLOP: That last part of my statement is
20 an inference. I apologise.
21 THE CHAIRMAN: Yes.
22 MR MCKILLOP: The third group of witnesses are really the
23 Jameson bar staff. I don't think I need to address the
24 Panel about whether they are independent or not, because
25 their substantive evidence against my clients and those
71
1 who were coming down Thomas Street is of such little
2 value. They are not able to identify who it was that
3 was making the noise. There is no causal link between
4 the time that they allege the shutters or the windows
5 were banged, and being aware then, subsequently, that
6 there was a confrontation had occurred at the bottom of
7 Thomas Street. We say the evidential value of their
8 evidence is so weak that I don't really need to address
9 you whether they were independent or not.
10 The final two witnesses who make allegations against
11 my clients and the Catholic group generally are
12 Andrew Allen and David Woods. Both of them were
13 arrested as suspects. So evidently they are not
14 independent.
15 THE CHAIRMAN: I am not sure it is quite accurate to say
16 that, because they were arrested as suspects, therefore
17 they are not independent. That may depend on what the
18 evidence about them is, may it not?
19 MR MCKILLOP: Yes. Well, just in relation to David Woods,
20 the format of the composite --
21 THE CHAIRMAN: David Woods' own evidence suggests that he
22 was quite close to what happened. He says minding his
23 own business.
24 MR MCKILLOP: Minding his own business. We did attempt to
25 precis his account of his interview statement to the
72
1 Panel in our additional materials, but I feel that we
2 didn't do credit to it, because, if you are tempted to
3 give any credence at all to the evidence of David Woods,
4 I would respectfully invite the Panel, despite the vast
5 amount of materials you have to read, to go back and
6 fully read the account of, not only his interview
7 statement, but his police interview of his events that
8 night starting from 7 o'clock, drinking in the town
9 centre, going to the Coach nightclub and coming back,
10 and his evasive answers about who he was with, who he
11 spoke to and whatever. It almost defies belief. In
12 fact, it does defy belief.
13 So we respectfully submit that, yes, just because
14 Mr Woods may have been a suspect, that doesn't
15 necessarily preclude him from being an independent
16 witness, but we would respectfully submit when you look
17 at his evidence in the round and in total, you would not
18 be able to attach any evidential value to at all
19 THE CHAIRMAN: He had, of course, a mark on his cheek, his
20 sister says.
21 MR MCKILLOP: Did he? Again, this is a matter that we have
22 raised in our written suspicions -- written
23 submissions -- submissions and suspicions. There is
24 a dispute about that.
25 THE CHAIRMAN: Yes.
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1 MR MCKILLOP: His sister says, when she brought him into the
2 flat, that he was injured. Mr Jones said he checked him
3 and didn't see any mark on him. I think that from
4 recollection, when Mr Woods was being interviewed by the
5 police, he denied that he was injured, but when he gave
6 evidence to this Inquiry, he said that he was.
7 THE CHAIRMAN: Sometimes a witness' evidence is like the
8 curate's egg: good in parts.
9 MR MCKILLOP: Yes, but we do not accept he was injured, in
10 our respectful submission.
11 THE CHAIRMAN: I might tell the truth about you, but be
12 reticent about what I say concerning myself?
13 MR MCKILLOP: Yes.
14 THE CHAIRMAN: We have your point.
15 MR MCKILLOP: Thank you. Mr Chairman, the second issue is
16 the rather delicate one concerning the alleged -- not
17 the alleged -- the fall-out between the Hamill family
18 and some of D's family. This arises at page 221 of the
19 composite written submissions.
20 It is stated:
21 "It is not without significance that there has been
22 a family fall-out between some members of the Hamill
23 family and D's family who were present on Thomas Street
24 that night. The evidence of P132 at page 108 was:
25 "Question: Well, tell us this: why do you not get
74
1 on with the Hamills?
2 "Answer: Pardon?
3 "Question: Why do you not get on with
4 Martin Hamill?
5 "Answer: Because he tortured my sisters.
6 "Question. What do you mean he tortured your
7 sisters?
8 "Answer: Well, he accused them of not doing enough.
9 "Question: Not doing enough in what respect?
10 "Answer. The night of -- they should have been
11 killed, more or less, than Robert.
12 "Question: They should have been?
13 "Answer: Saying Robert was killed, that they didn't
14 do enough to protect him.
15 "Question: Did you say, 'They should have been
16 killed more than Robert'?
17 "Answer: No, it was a slip of the tongue."
18 Then the following part of the submission is:
19 "Whilst it is correct to say that simply because
20 a person lies about one issue, it does not mean to say
21 that they are necessarily lying about another issue,
22 their lies go to the core of the night's events and,
23 therefore, any of their evidence which suggests police
24 inactivity cannot be relied on."
25
75
1 Mr Chairman, the significance of the fall-out is not
2 immediately apparent to me, but I don't want to pass
3 a matter up without having to at least address the
4 issue. If it is being alleged that it is significant
5 because my clients -- and when I say "my clients", I am
6 not speaking about Colin Prunty, because he doesn't seem
7 to be involved in this, but D, E and F were somehow or
8 in some way responsible for the outbreak of violence on
9 this particular night, we reject that completely.
10 We would remind the Panel that the potential
11 criticisms, at their highest, which those three people
12 face is that they were part of a group that was involved
13 in the trouble that night. There is no evidence
14 whatsoever against either of those three clients that
15 they said anything or did anything or hit anybody which
16 was responsible for this fight breaking out.
17 Alternatively, if it is alleged that it is
18 significant because we have not told the truth somehow
19 about the real reason for this fall-out, and, therefore,
20 that taints the rest of our evidence --
21 THE CHAIRMAN: Yes.
22 MR MCKILLOP: -- the only person who was questioned about
23 that was D. I accept that in his answers he didn't want
24 to tell the Tribunal and the Panel what the real reason
25 was, saying, "You have to ask Martin Hamill".
76
1 THE CHAIRMAN: So he was not forthcoming.
2 MR MCKILLOP: No. He said, "You will have to ask
3 Martin Hamill".
4 Then if I go on, Martin Hamill subsequently gave
5 evidence before the Tribunal. It was indicated that may
6 have been to do with a compensation claim that they
7 initiated.
8 The point I wish to make is this. Notwithstanding
9 D's reluctance to discuss it, which the Panel,
10 I respectfully submit, may find understandable --
11 break-ups in families can happen in the best of families
12 and it is not necessarily something they want to talk in
13 public about, but what I want to say is this. E and F
14 were never questioned about that. Accordingly, they
15 can't be accused of lying about this issue, because they
16 were never asked about it. Accordingly, if the Panel
17 feels that D's evidence has been tainted on this, that
18 certainly does not apply to E and F
19 THE CHAIRMAN: Yes.
20 MR MCKILLOP: The third issue which arises out of the
21 submissions, Mr Chairman, is at page 915 of the
22 composite written submissions. It is just in the middle
23 there. It arises out of Mr McComb's submissions where
24 it is said:
25 "It is stated that Mr Prunty's evidence is so
77
1 inconsistent that, even if he had identified Lunt, this
2 would have been of little value."
3 Whilst it is clear beyond peradventure that
4 Mr Prunty wrongly identified Forbes, that alone, in my
5 respectful submission, does not reflect badly on his
6 evidence. The reason for that is it has long been
7 recognised that particular care has to be taken in
8 respect of identification evidence
9 THE CHAIRMAN: Well, you are assisted there, aren't you, by
10 Mr Kerr's assessment, who doesn't simply say, "He seemed
11 to be truthful", but said he didn't, even when given the
12 opportunity, elaborate, embroider, what he had to say.
13 MR MCKILLOP: Yes. So my initial point is this: even the
14 most truthful and convincing witness can get it wrong
15 when it comes to identification. He wrongly identified
16 Forbes in November, I believe, 1997. So that's more
17 than six months beyond the date of the incident.
18 Now, as regards the other inconsistencies in his
19 evidence, yes, they are inconsistencies, but we think it
20 is pertinent to remind the Panel about the backdrop in
21 which these events occurred and, in that respect, the
22 attack was sudden, it was ferocious, it involved a large
23 crowd who were loud and aggressive.
24 We say that the fear that one can detect in
25 Constable Cornett's voice, how she radioed for back-up,
78
1 is perhaps the best indicator, more than words, about
2 the grim reality of what it was like actually on the
3 scene.
4 We would ask the Panel to accept how much worse
5 would it have been for my clients, who were involved
6 right at the centre of this violence. So we say this
7 was not a fertile background or environment for
8 witnesses like Mr Prunty to be able to observe, absorb
9 and take in the events that were going on around him.
10 Allowances must have to be made for that in respect of
11 discrepancies which may arise in his account
12 THE CHAIRMAN: Sometimes advocates forget that witnesses are
13 human and they are not video cameras with a 360-degree
14 coverage.
15 MR MCKILLOP: Yes, indeed.
16 THE CHAIRMAN: Some see one thing and others are looking
17 somewhere else and see something else.
18 MR MCKILLOP: Thank you, Mr Chairman.
19 Mr Chairman, those are the three issues that we have
20 identified in other people's written submissions.
21 If I could conclude just by saying this. The
22 potential criticisms which the Panel may find in respect
23 of my clients are very serious ones insofar as my
24 clients are concerned
25 THE CHAIRMAN: Yes.
79
1 MR MCKILLOP: We also say that the behaviour that they are
2 accused of is inherently unlikely, given the
3 circumstances in which they found themselves. We say it
4 is inherently unlikely that they would have behaved or
5 provoked or initiated an attack, because, first of all,
6 they were aware of the risk they were taking as
7 Catholics walking down into the Portadown town centre.
8 Not only were they aware that they were taking
9 a risk, but we say it's extremely unlikely that they
10 have behaved in the manner which is alleged against
11 them, because my clients saw the police Land Rover and
12 they were reassured by its presence.
13 THE CHAIRMAN: Yes.
14 MR MCKILLOP: Therefore, it is literally one of those
15 situations where it defies belief that my clients,
16 within sight of this Land Rover, would either bang
17 shutters, rattle windows at Jamesons Bar, shout
18 sectarian slogans or initiate a fight.
19 Because of those -- because it is inherently
20 unlikely and because the criticisms are serious, we say
21 that there would have to be strong or cogent evidence
22 for the Panel to be satisfied on the balance of
23 probabilities that they did that, and, of course, if
24 there was strong, cogent evidence in that regard, of
25 course the Panel could, on the balance of probabilities,
80
1 make such a determination, but we say, when you examine
2 their evidence in respect of that, there is no such
3 cogent or strong evidence.
4 The reason that we say that is that the two main
5 witnesses who allege that this group of people were the
6 trouble-makers are P42 or, alternatively, William Jones,
7 but we say that those two accounts are so different in
8 the detail that they are mutually exclusive and that
9 they are not capable of corroborating each other.
10 THE CHAIRMAN: Yes.
11 MR MCKILLOP: We say that each account on its own carries
12 little or no weight.
13 In particular, in relation to P42, we say you can't
14 attach any weight to an account which is given
15 anonymously, and then, when his identity becomes known,
16 he suffers from amnesia.
17 THE CHAIRMAN: Just explain that a little bit more, will
18 you? You say "when his identity becomes known". When,
19 very roughly, was that?
20 MR MCKILLOP: That seems to have been -- I am not sure. It
21 seems to have been -- he seems to have been interviewed
22 before he was married around 2000.
23 THE CHAIRMAN: So about three years later?
24 MR MCKILLOP: Yes. He was interviewed by a police officer
25 in Portadown Police Station for a period of two hours.
81
1 It was before he was married. He was questioned about
2 this when he gave evidence by my learned friend
3 Mr McGrory. He had been dropped off at the police
4 station by his future wife. She collected him a couple
5 of hours later. He was then red and very uptight and
6 had alleged he had been given a tough time in the police
7 station.
8 That, as far as we know it, was some time before
9 they were married, which seems to have been in 2001.
10 They were married in 2001. This may have happened in
11 the year 2000.
12 For example, he is then questioned by the police
13 officers in 2006.
14 THE CHAIRMAN: About three years after the event, he was
15 interviewed by the police. Is that it?
16 MR MCKILLOP: Yes.
17 THE CHAIRMAN: He said he couldn't remember anything?
18 MR MCKILLOP: We don't know. There is no record of that
19 interview. That's one of the things that we haven't
20 been able to find.
21 THE CHAIRMAN: Then my note, I think, is wrong. What I have
22 written is, "When his identity becomes known, he suffers
23 from amnesia, and that's about three years after the
24 event". Let me start again.
25 He was interviewed or seen by the police about three
82
1 years after the event, but we have no record of what he
2 said?
3 MR MCKILLOP: We have no record of that.
4 THE CHAIRMAN: Then he is interviewed next by the Inquiry.
5 Is that it?
6 MR MCKILLOP: No, he is approached by the police, I believe,
7 in October 2006. I believe it may have been Detective
8 Sergeant H. He is essentially fobbed off at that point,
9 because P42 says, "I have just had an accident at work.
10 I am not very well. I can't speak to anybody for six
11 weeks".
12 THE CHAIRMAN: Yes.
13 MR MCKILLOP: Then that is followed up by a further
14 interview at P42's home in November 2006.
15 THE CHAIRMAN: By the police?
16 MR MCKILLOP: By the police, yes.
17 THE CHAIRMAN: Is that when he says he can't remember?
18 MR MCKILLOP: Yes.
19 MR UNDERWOOD: I am sure it is a slip of the tongue.
20 I think that's 2002 in both cases.
21 THE CHAIRMAN: Which one is 2002?
22 MR UNDERWOOD: Both of the 2006 references, I think.
23 THE CHAIRMAN: I have written November 2006. Should I have
24 written 2002?
25 MR UNDERWOOD: According to our records, yes.
83
1 MR MCKILLOP: I apologise. I have been told that is
2 correct.
3 THE CHAIRMAN: October 2006, that should be 2002?
4 MR UNDERWOOD: Correct.
5 THE CHAIRMAN: Thank you.
6 MR MCKILLOP: So for those reasons, we say that P42 is not
7 a credible witness.
8 THE CHAIRMAN: We did, of course have, a medical report,
9 didn't we, which we considered in the case of P42?
10 Correct me if I am wrong, Mr Underwood.
11 MR UNDERWOOD: Almost certainly, but it wouldn't have been
12 distributed to the other parties.
13 THE CHAIRMAN: Of course not. I was not going to mention
14 its contents.
15 MR UNDERWOOD: My recollection is you did have a medical
16 report.
17 THE CHAIRMAN: Baroness Richardson points out that was about
18 the question of anonymity which we had to decide, but it
19 was a medical report which therefore touched on or dealt
20 with his mental state.
21 MR MCKILLOP: Obviously I am not privy to that. So my
22 remarks would be sort of subject to what's contained in
23 respect of the medical evidence.
24 THE CHAIRMAN: Yes.
25 MR MCKILLOP: Then finally, Mr Chairman, we say that, on the
84
1 other hand, William Jones' evidence is worthy of little
2 currency because it is our respectful submission that,
3 had the police not arrested Woods, neither the police
4 nor any of us would have been ever aware of Mr Jones'
5 version of events.
6 THE CHAIRMAN: I think perhaps, particularly in Portadown at
7 the time, one should be a little cautious before saying,
8 because he didn't volunteer when the police came to him,
9 that what he said isn't to be relied upon.
10 MR MCKILLOP: Well, I would have two matters to respond to
11 in relation to that.
12 First of all, he never said to the police, "Listen,
13 I didn't come forward because I was afraid or because
14 I am living in Portadown, and that's something I was
15 concerned about". He never made that case.
16 Again, this is something we refer to in our written
17 submission. He even had the brazen audacity to say to
18 the Inquiry interviewers, "I can't remember whether
19 I went to the police or the police came to me", which,
20 in our respectful submission, we say speaks volumes.
21 THE CHAIRMAN: Yes.
22 MR MCKILLOP: The final matter was, arising out of his
23 Inquiry interview, he was at pains to tell his
24 interviewers that he used to serve in Portadown as
25 a member of the British army alongside the police in
85
1 Portadown.
2 So, Mr Chairman, for all those reasons, we
3 respectfully request that the Panel rejects the
4 potential criticisms against all of my clients.
5 THE CHAIRMAN: Thank you very much, Mr McKillop.
6 10.30 tomorrow morning.
7 MR UNDERWOOD: Yes. The sequence of submissions to be
8 addressed to you tomorrow is in something of a state of
9 flux. It may well that be we have a short day for
10 various reasons.
11 THE CHAIRMAN: I see. Very well. 10.30 and we will see
12 what the day brings.
13 (4.45 pm)
14 (The hearing adjourned until 10.30 tomorrow morning)
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