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Hearing: 9th December 2009, day 72
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PUBLIC INQUIRY INTO THE DEATH OF
ROBERT HAMILL
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Held at:
Interpoint
20-24 York Street
Belfast
on Wednesday, 9th December 2009
commencing at 10.30 am
Day 72
1 Wednesday, 9th December 2009
2 (10.30 am)
3 MR UNDERWOOD: I mentioned last night that the running order
4 was in a state of flux. The position we are in is that
5 you will be hearing representations on behalf of
6 Mr Hull, then on behalf of Mr Mullan, then on behalf of
7 Andrea McKee, and then on behalf of Michael Irwin and
8 Alan McCrum. I still anticipate it is going to be quite
9 a short day, having regard to that. So I would invite
10 my friend for Mr Hull to start.
11 Closing submissions by MR C LUNNY
12 MR C LUNNY: Sir, I appear on behalf of Colin Hull. I don't
13 intend to say very much at all, save for a few points
14 that were included in our written submissions.
15 I believe the Panel were asked to consider the
16 question -- I think it is framed as follows:
17 "Potential criticism of Colin Hull is that he gave
18 a false statement to Rosemary Nelson which did not
19 properly account for his movements and what he saw."
20 Sir, I would suggest that there are probably two
21 main bases on which this potential criticism could be
22 founded. Firstly, that Colin Hull, in his statement to
23 Rosemary Nelson, made certain inconsistent statements
24 compared to the statement, or the action record sheet,
25 I should say, recorded by DC Keys and created. That is
1
1 recorded at [03449].
2 Sir, in response to that -- I am not sure whether
3 the Panel has --
4 SIR JOHN EVANS: We have it.
5 MR C LUNNY: In response to that, I would say on behalf of
6 my client that Mr Hull, in his oral evidence and his
7 statement, claimed that the evidence or the version of
8 events he gave to DC Keys was given in the back of
9 a police car. It was not quite clandestine, but
10 certainly he was not altogether comfortable with the
11 giving of the statement.
12 The Panel may remember that Mr Hull denied that
13 DC Keys had any kind of electronic equipment with him
14 and he insisted that the recording of this statement was
15 done by handwriting.
16 Furthermore, I would ask the Panel to recall --
17 THE CHAIRMAN: This is what we have called the action sheet?
18 MR C LUNNY: Indeed. What we have called the action sheet.
19 We ask the Panel to recall and, indeed, it seems clear
20 to see before the Panel on the screen this action sheet
21 was not signed by my client, Mr Hull. It was not
22 verified and he would dispute the veracity of the
23 content of that action record print.
24 The second basis on which I would respectfully
25 suggest the Inquiry team's potential criticism might be
2
1 based is that Mr Hull did not ever mention meeting
2 Thomas Mallon.
3 Now, in response to that, I would respectfully
4 submit to the Panel it wasn't the case that Mr Hull ever
5 denied meeting Mr Mallon. In his oral submissions and
6 oral evidence to the Panel and in various statements he
7 had provided, there is no mention of Mallon at all.
8 There certainly, at the same time, is no denial that he
9 met Mallon and heard this supposed warning.
10 Mr Hull gave evidence that he just could not recall
11 meeting Mr Mallon some 12 years on when he gave his oral
12 testimony.
13 Sir, I think the potential criticism is framed in
14 such a way as to invite the Panel to consider that
15 Mr Hull's evidence is not altogether credible. For the
16 two reasons I have outlined above, and for the two or
17 three other reasons I have outlined in my written
18 submissions, I respectfully ask the Panel to consider in
19 totality the evidence which Mr Hull gave and not to
20 discount any credibility from the version which he gave.
21 I have nothing further to say
22 THE CHAIRMAN: Just two points. We shall obviously have to
23 consider the action sheet with the statement to see
24 whether the action sheet may be the result of
25 misunderstanding or whether the difference is so great
3
1 that there may be another motive.
2 MR C LUNNY: Indeed.
3 THE CHAIRMAN: As far as the criticism for not saying he met
4 Mr Mallon, there may be force in saying that, 12 years
5 on, he could not recall. What we have to look at is the
6 matter when he spoke much closer to the time and whether
7 the other evidence shows that he must have met Mallon
8 and, therefore, didn't disclose it. The reason is
9 another matter, but it might be, in those circumstances,
10 we will have to consider whether, if he saw him and was
11 trying to help, he would have mentioned him.
12 MR C LUNNY: Indeed.
13 THE CHAIRMAN: Thank you very much.
14 MR C LUNNY: Thank you.
15 SIR JOHN EVANS: Just before you sit down, Mr Downey, could
16 I just ask: may we be reminded what Keys said about this
17 action sheet? Was he asked about it?
18 MR C LUNNY: He was asked about it.
19 SIR JOHN EVANS: Presumably Keys, being the author of it,
20 would sustain it?
21 MR ADAIR: My recollection is that he was asked about it and
22 said that those are the words that were used by Hull.
23 I am paraphrasing what he said, sir. It was an accurate
24 reflection of what he was told by Mr Hull.
25 SIR JOHN EVANS: Thank you.
4
1 MR C LUNNY: We have no issue with that.
2 SIR JOHN EVANS: Thank you.
3 THE CHAIRMAN: Thank you very much.
4 Closing submissions by MS HUGHES
5 MISS HUGHES: Sir, I appear on behalf of Mr Gregory Mullan.
6 For the purposes of my oral submissions I hope to
7 confine myself to part 15 of the written submissions
8 that have been made available.
9 At the outset and for the avoidance of any doubt
10 I re-state that the purpose of my involvement here is
11 merely to represent Mr Greg Mullan, who, at that time,
12 was working as a deputy principal within the ICPC.
13 I am not representing the ICPC as an organisation,
14 and in my written submissions, and for the purpose today
15 of my oral submissions, I tend only to deal with the
16 criticisms which have been levied at Mr Mullan and not
17 the criticisms which have been or could be levied at the
18 ICPC as an organisation at that time.
19 I do think, however, I am required to deal with the
20 status of the original referral. That was something
21 which Mr Mullan was asked to address. It is quite clear
22 from his oral evidence that, in his mind, the document
23 which he was dealing with and which generated in his
24 mind an Article 7 referral was the letter of complaint
25 THE CHAIRMAN: That's the letter from Rosemary Nelson?
5
1 MISS HUGHES: Yes, dated 6th May.
2 THE CHAIRMAN: Yes.
3 MISS HUGHES: Mr Mullan has quite clearly said, and
4 I re-state, that this was never anything other than
5 a letter of complaint, and, to that end, could never be
6 treated as anything other than an Article 7 referral.
7 THE CHAIRMAN: Yes.
8 MISS HUGHES: He says all documents generated by the ICPC,
9 both internally and police, and all notes relating to
10 his file, clearly indicate this was an Article 7 matter
11 and that the ICPC at that time was investigating it
12 pursuant to Article 9(1)(a), which was the appropriate
13 action to take.
14 It is his position that this was, in his mind, never
15 an Article 8 referral and he dealt with it as
16 an Article 7 referral in his role.
17 The criticism which has been directed to Mr Mullan
18 relates in the main to the failure of the ICPC to deal
19 with this tipping-off allegation as part of the
20 supervised investigation.
21 To deal with the points which arise mainly from
22 Ms Winter's yesterday and in some points in the written
23 submissions, I posit a number of questions.
24 That is: did the role of the ICPC at that time and
25 Mr Mullan within that organisation include the
6
1 supervising and supervision of the murder investigation
2 and the tip-off? To that end we say no.
3 THE CHAIRMAN: Mr McGrory suggested to us yesterday that the
4 murder investigation had been referred, but the ICPC
5 deals with complaints about police officers, does it
6 not?
7 MISS HUGHES: Yes.
8 THE CHAIRMAN: The matter which can be referred under
9 Article 8 is not a murder investigation; it has to be
10 a matter relating to a police officer.
11 MISS HUGHES: That is correct, sir.
12 THE CHAIRMAN: In other words, the ICPC was never seized,
13 and could not be seized, of supervising the
14 investigation of the murder.
15 MISS HUGHES: That is correct, sir.
16 In relation then to the allegation of the tip-off,
17 we say that allegation did not form part of our
18 investigation, as it couldn't have been. The
19 time-line quite simply didn't allow for that. That then
20 naturally leads on to the question of: could the ICPC
21 have broadened the scope of their investigation to
22 include the tipping-off allegation?
23 Arguably, yes, it could, and this is something that
24 we have accepted both in the evidence of Mr Mullan and
25 in our written submissions, and this could have been
7
1 done by asking the appropriate authority pursuant to
2 Article 8 to refer this significant matter back to them,
3 but that would have been, we say, considered as
4 a separate issue.
5 In terms of the issue of self-referral, which was
6 something which Mr Mullan was challenged about, I feel
7 that's appropriately dealt with within the written
8 submissions and don't wish to go into that in any
9 further detail.
10 That then leads us to the question of: should the
11 ICPC and Mr Mullan have treated the tipping-off
12 allegation as part of the supervised investigation?
13 Mr Mullan to that end says no.
14 In his mind, at that time, this issue, this
15 tipping-off issue, was inextricably linked to the murder
16 investigation, and he goes further to say that for the
17 ICPC to have become concerned on this issue would, with
18 the benefit of hindsight, have led to them working hand
19 in hand with McBurney. That leads to a position where
20 they would have begun directly concerning themselves in
21 the murder investigation almost to a role of directing
22 investigations and would have led, overall, to possibly
23 a wholesale integration of the ICPC as active
24 participants in the murder investigation
25 THE CHAIRMAN: Help me to understand. Of course the ICPC
8
1 should not have been investigating the tip-off
2 allegation unless there had been a referral.
3 MISS HUGHES: Yes.
4 THE CHAIRMAN: Since it was not referred by Rosemary's
5 Nelson's complaint, it could only have been a referral
6 by the Chief Constable under Article 8.
7 MISS HUGHES: Yes.
8 THE CHAIRMAN: I think what you are saying is not merely
9 there was not a referral, but that a referral would have
10 been very difficult to work in view of the close
11 connection between the tipping-off allegation and the
12 murder investigation. Have I understood you correctly?
13 MISS HUGHES: That is correct, sir. Further than that,
14 there is a flavour, if I put it that way, within the
15 written submissions that the role could have been
16 expanded, if you like, that the Article 7 referral may
17 have naturally incorporated the tipping-off allegation
18 when they became aware of that, and if that is something
19 which I have construed from the written submissions and
20 posed to deal with or attempt to deal with today and
21 that's not the Panel's understanding or interpretation
22 of it --
23 THE CHAIRMAN: It depends solely, I think, on the
24 construction of Rosemary Nelson's letter.
25 MISS HUGHES: Yes, and that is clearly there for all to see,
9
1 and Mr Mullan indicates that there was never an issue in
2 his mind as to what was intended by that letter and,
3 therefore, what his role was within the organisation.
4 That then leads, having dealt with those issues, to
5 the query as to whether or not, which is something
6 Ms Winters directed herself to yesterday, there has been
7 what's termed gross negligence on the part of Mr Mullan
8 or a deliberate failing by him.
9 To that I say, if there were failings on the part of
10 the ICPC, which I don't propose to deal with in any
11 form, I am not tasked to deal with that. My
12 representation is only of Mr Mullan. I feel that it is
13 important if there are to be criticisms levied at that
14 organisation or any failings in terms of the
15 investigation to recognise the role of Mr Mullan within
16 the organisation.
17 Some parties have sought to betray his involvement
18 as almost having conduct of the complaint. Sir, I say
19 he was a deputy principal in the ICPC. His primary
20 responsibility was one of administration. This
21 gentleman had no background as an investigator.
22 Furthermore, he had no legal training. In terms of
23 an overview of his position, I respectfully submit that
24 he was not in any position to challenge, as has been
25 suggested in the written submissions, the investigative
10
1 strategy, or, indeed, the recommendations of Detective
2 Chief Superintendent McBurney at that time.
3 Unfortunately, we are in a situation that the
4 evidence of the ICPC at that time is incomplete, given
5 that we cannot unfortunately hear from Mr Murnaghan.
6 So the only evidence before this Tribunal is that of
7 Mr Mullan, but I say it must be clear that there was
8 a hierarchy within the organisation at that time and
9 that Mr Mullan had, as I have said previously, a purely
10 administrative role. He was not a supervisor. He was
11 not an investigator and, ultimately, the question for
12 this Panel is: did he have any decision-making role? To
13 that end, I say no.
14 So, in conclusion, I say that there cannot be any
15 evidence before this Panel that Mr Mullan was grossly
16 negligent or that there was any deliberate wrongdoing on
17 his part. Sir, I wouldn't have anything further to add.
18 THE CHAIRMAN: Can I just ask you about what you say is the
19 inextricable link between the tip-off allegation and the
20 murder? Do I understand you to say that if there had
21 been a referral of that under Article 8 when the murder
22 investigation was still proceeding, its connection with
23 the murder would have made it inappropriate for the ICPC
24 to accept the role of supervisor?
25 MISS HUGHES: Sir, I don't feel I am in a position to
11
1 necessarily deal with their acceptance, whether or not
2 they would have accepted that referral. I merely --
3 THE CHAIRMAN: You point out the difficulty.
4 MISS HUGHES: I point out the difficulties.
5 THE CHAIRMAN: Thank you very much.
6 Closing submissions by MR DALY
7 MR DALY: Sir, my name is Daly and I have some submissions
8 on behalf of Andrea McKee.
9 At the outset, I would like to endorse my learned
10 friend Mr McGrory's thanks to the Inquiry lawyers led by
11 Mr Underwood, QC, assisted by Miss Kemish, Mr Emanuel,
12 Miss Enston and on behalf of the legal team that I am
13 part of, we would like to thank them for their excellent
14 service to the Inquiry and to us and their very able
15 assistance at every turn.
16 In relation to Andrea McKee, I would like to try to
17 framework these short submissions under four broad
18 categories:
19 1. To look at the background of Andrea McKee, the
20 person.
21 2. To place her in the context of Tracey Clarke.
22 3. To place her in the context of Robert Atkinson.
23 4. To place her in the context of the Office of the
24 Director of Public Prosecutions.
25 It will not be possible to keep those separate and
12
1 distinct, evidently, because of the obvious cross-over.
2 THE CHAIRMAN: Yes.
3 MR DALY: In relation to Andrea McKee, the person and the
4 witness, as you have commented already, sir, you have
5 had the very obvious benefit of seeing this lady and
6 hearing from her sitting just a short number of feet
7 from you. You, also, in addition to that, have the
8 benefit of various written submissions and oral
9 submissions in relation to her which have already been
10 delivered to you by Mr McGrory, QC, and by the British
11 Irish Rights Watch.
12 Mrs McKee's involvement and your assessment of her
13 will evidently involve an assessment of her credibility
14 as a person and as a witness. She is a lady who is not
15 from Northern Ireland, but moved to the Portadown area
16 as a result of her marriage to Michael McKee
17 THE CHAIRMAN: Yes.
18 MR DALY: Through various circumstances, which you have
19 heard, she has found herself a central figure in this
20 matter in this Inquiry in a number of ways, like many
21 aspects of life, through chance.
22 Relevant matters in relation to her include her
23 involvement in the Brownstown Tae Kwon Do club, which you
24 have heard about. You have heard that a number of RUC
25 officers attended the club and a number of their
13
1 children trained there.
2 You have heard that Allister Hanvey was a champion
3 member of that club and was integrally involved in the
4 club.
5 You are aware that effectively it was
6 Michael McKee's business and Andrea assisted him in the
7 administration and running of the club.
8 Tracey Clarke was firstly a niece of Michael McKee
9 and, secondly, an on/off girlfriend of Allister Hanvey.
10 It is clear, we submit, that Michael and Andrea McKee
11 had a very good relationship with Tracey Clarke and with
12 Allister Hanvey. It is also clear, we would submit,
13 that Michael and Andrea McKee had a very good
14 relationship with the Atkinsons, Robert and Eleanor.
15 These various parties socialised together, trained
16 together and practised their sport. The Atkinson's
17 daughter attended the same club.
18 There was a foreign trip associated with the club to
19 the island of Lanzarote. Michael and Andrea McKee, the
20 Atkinsons, Tracey Clarke and Allister Hanvey were all
21 part of that trip.
22 It is important, sir, and it may be a point that
23 I repeat, that there is no evidence or no suggestion, we
24 would submit, of any fundamental breakdown in those good
25 relations between those parties that I have outlined
14
1 prior to the matters which have arisen for enquiry.
2 It is also relevant that the young Andrea McKee, who
3 moved to live in the Portadown area, did so with a clear
4 criminal record and throughout her time in the Portadown
5 area she maintained that good status until her
6 conviction in Craigavon Crown Court as a result of
7 matters arising from her involvement in these issues.
8 That clear record and that previous good character
9 of hers was ruined effectively when she acted we would
10 say under the influence of her husband, Michael, to
11 provide the false alibi to Robert Atkinson to cover the
12 phone call to the Hanvey household.
13 She effectively confessed to this in the year 2000,
14 and we would submit, sir, she has been consistent in the
15 years between 2000 and 2009 in relation to her version
16 of events in relation to this phone call.
17 She, herself, put herself into the criminal justice
18 system, into the criminal court system, and it's
19 a matter of record that herself and her former husband,
20 Michael, have been the only persons to be prosecuted in
21 all of the matters that have arisen in relation to this
22 Inquiry outside of the murder trial.
23 I respectfully submit, in the nine years since the
24 year 2000, Andrea McKee has cooperated significantly
25 with the criminal justice system and with the various
15
1 policing personnel that have a contact with her. She
2 has attended her various court appointments. There is
3 no suggestion of any bench warrants or arrest warrants
4 being issued for her. She has kept in touch with RUC
5 and NIPS personnel, and she has kept in touch with Welsh
6 policing personnel. She has been available. She has
7 remained in contact. She has taken phone calls. She
8 has answered correspondence.
9 She, herself, has put herself forward at all times
10 as a willing witness for the DPP and for the PPS. The
11 only other person who could have done something similar
12 was her former husband, Michael. He chose not to do so.
13 When she moved on to her new life and her new career
14 and a new family and a fresh start, she remained
15 a willing person to bring the matters in the
16 Northern Ireland courts to a conclusion, despite the
17 fact that she was trying, in all other aspects, to move
18 on with her life.
19 If I could move on to the second framework heading,
20 sir, which is looking at Andrea McKee in the context of
21 Tracey Clarke.
22 Clearly, resolving the evidence between these two
23 persons will involve an assessment again of Andrea McKee
24 and, on this occasion, of Tracey Clarke. Tracey Clarke
25 we know was at the scene of the Hamill murder and we
16
1 know she made a very crucial and fundamental statement
2 on 10th May 1997, in that it led to a number of arrests,
3 and we know that Andrea McKee was present with her.
4 If I could look, briefly, sir, at [31616], this is
5 that very relevant and very pertinent statement which
6 goes to the very core of this Inquiry.
7 If we just move forward one page, please, [31617],
8 it may be useful to remind ourselves what it was that
9 Tracey Clarke says she saw just in the middle third of
10 that page, please. Three lines down:
11 "These persons were kicking the person on the ground
12 around the head and body. I saw them jump on the person
13 on the ground. They jumped all over him and kicked him.
14 I saw the persons who were doing this and I can identify
15 them as: (1) Dean Forbes, (2) Allister Hanvey, (3)
16 Stacey Bridgett, (4) 'Muck', (5) Rory Robinson."
17 Evidently the importance of this contemporaneous
18 account and contemporaneous statement cannot be
19 overstated. We know that Tracey Clarke, from this
20 statement, sees the perpetrators. We know that she
21 speaks to Robert Atkinson. From this statement, that
22 she heard exchanges between Hanvey and Atkinson, and she
23 is deeply relevant to the issue of what did Atkinson see
24 Hanvey do, and, subsequently, did Atkinson tip off
25 Hanvey?
17
1 If we could then look at [80184], 11 years later,
2 this is the retraction statement which is made by
3 Tracey Clarke. Just look at paragraph 4. She now says:
4 "I made a statement to the police dated 10 May 1997.
5 A copy of that statement contains page numbers ... that
6 statement is not true. Since I made that statement,
7 this is the first time that I have said that the
8 contents were not true. I did not tell the RUC or the
9 DPP that the contents of the statement were untrue."
10 If we can then go forward to paragraph 21, please,
11 [80187]:
12 "In my statement I said, 'I remember
13 Robbie Atkinson's name coming up and Allister said that
14 Robbie Atkinson had been very good to him, because on
15 the Sunday morning after the incident in the town
16 centre, he rang him about 8.00 am and told him to get
17 rid of the clothes he was wearing the previous night'.
18 I do not know where this came from. I think that has
19 come from my auntie, Andrea McKee. She was with me when
20 I made this statement and I believe she had this put
21 into the statement."
22 Just over the page, please, [80188], paragraph 24:
23 "I made a false statement to the police because my
24 auntie, Andrea McKee, took me to the police station and
25 the police were not going to let me out of the police
18
1 station unless I told them these things and my aunt was
2 telling me what to say."
3 Paragraph 28, please, [80188]:
4 "The police were shouting at me and saying things to
5 me and banging the table, saying that I wasn't going to
6 get out."
7 Paragraph 33, please, [80189]:
8 "I refer to the statement of my mother ... which is
9 dated 1st November 2000 and now produced and shown to me
10 containing page numbers ... my mother has had
11 a traumatic life with physical and mental illness. She
12 made her statement to the police three years after the
13 incident and she could easily have made things up.
14 Where my mother says that Robert Atkinson told
15 Allister Hanvey to burn his clothes, I guarantee that
16 came from Andrea McKee. She gets people in trouble.
17 She's very, very vindictive. Allister never spoke to me
18 about Robbie Atkinson telling him to burn his coat.
19 Andrea did let Allister and I stay at her house even
20 though she and Allister did not get on."
21 So it will be a matter, sir, in your assessment of
22 this very obvious belated volte face by Tracey Clarke to
23 assess whether the blame she places at the feet of
24 Andrea McKee is worthy of belief and the blame she
25 places at the feet of the interviewing police officers
19
1 is worthy of belief, or whether, as we say, this
2 retraction, 11 years after the event, is just nonsense
3 and incredible and unworthy of belief.
4 Present in the interview in 1997 were two very
5 experienced police officers, including P39. If we could
6 just look at her statement, please, at [81567]. If we
7 could look forward to paragraphs 19 and 20, please,
8 [81571]:
9 "On 9th May 1997, I was aware there were two
10 potential eye-witnesses. I am remained that DI Irwin
11 had spoken to Andrea McKee the previous day and she told
12 him that a young woman had witnessed the incident and
13 had made allegations about a reserve constable.
14 I remember that Andrea McKee came into the station with
15 Tracey Clarke on 9th May and a statement was taken which
16 starts at page number ... DC McAteer took that statement
17 and I was present. Tracey related to us what she saw on
18 the night of 26/27 April 1997 and what she knew of the
19 involvement of Reserve Constable Atkinson. Andrea McKee
20 was present when Tracey Clarke commenced giving the
21 statement but I cannot be certain if she remained
22 throughout the entirety of the interview. I remember
23 thinking that we needed to keep both of these women on
24 board for the purpose of the investigation. Although
25 Andrea McKee was not a witness to the incident, she
20
1 could be a witness to the allegation against
2 Reserve Constable Atkinson. I do not remember the
3 details, but we would have considered taking a statement
4 from Andrea McKee at the appropriate time.
5 "20. My impression of Tracey Clarke was that she
6 was apprehensive about making the statement, so it was
7 a case of reassuring her to tell the truth as she knew
8 it. She was a nervous and vulnerable young girl and
9 I realised we needed to speak to her parents.
10 DC McAteer and I took Tracey Clarke home after she had
11 made her statement. At Tracey's house we spoke to her
12 parents to put their minds at rest about the process and
13 Tracey's safety. I do not believe I was aware of the
14 link between Andrea McKee's husband and the Clarks.
15 I continued to have dealings with Tracey Clarke and her
16 mother after 10 May 1997, but had nothing further to do
17 with Andrea McKee. If Mrs Clarke ever called the
18 station for me, I basically dropped everything and went
19 to her, so there was very good follow-up with her.
20 I never thought Tracey would not give her evidence and
21 I don't recall being aware that she was being
22 intimidated."
23 So what we submit, sir, is, during this very
24 important process in 1997, we had experienced police
25 interviewers who accept that Tracey Clarke was young and
21
1 vulnerable, and we submit Andrea McKee was present to
2 put Clarke at her ease. Andrea McKee and Michael McKee
3 had escorted her to the police station.
4 P39's evidence was that Tracey Clarke was being
5 truthful during this account. Her evidence was that she
6 was not being put -- P39's evidence was that
7 Tracey Clarke was not being put under undue pressure and
8 was not under the influence of Andrea McKee. If she had
9 suspicions that that was happening, P39 said that she
10 would have become involved and she would have
11 interfered.
12 The allegations about shouting and banging of
13 tables, that Miss Clarke would not be released from the
14 station and that words were being put in her mouth,
15 those allegations were described as nonsense by P39.
16 In assessing this statement and in assessing the
17 credibility of Tracey Clarke in the light of
18 Andrea McKee, a number of questions arise:
19 Why did Tracey Clarke not indicate that the
20 statement of 10 May 1997 was simply wrong before the
21 2008 retraction?
22 Why did she not retract in 1997 and get her
23 boyfriend, Allister Hanvey, out of prison?
24 What was possibly in it for Andrea McKee to
25 effectively destroy good relations and good friendships
22
1 that had been built up?
2 A number of figures believed Tracey Clarke to be
3 truthful: the senior coroner for Northern Ireland,
4 Mr Leckey, senior prosecuting counsel, Gordon Kerr, QC,
5 and a number of senior officers within the Office of the
6 Director of Public Prosecutions.
7 If I can move on, sir, then, to the third broad
8 category, which is looking at Andrea McKee in the
9 context of Robert Atkinson.
10 Inevitably, there is a follow-on from the previous
11 category and what Tracey Clarke told Andrea McKee about
12 the night, what Tracey Clarke told Andrea McKee about
13 Atkinson warning Hanvey, and then the obvious issue
14 about the alibi phone call, the cover-up provided to
15 Atkinson, and, in 2000, Andrea McKee coming clean about
16 this.
17 We submit the Inquiry can look at the evidence of
18 the taxi firm which was called to the McKee's household
19 to collect Smith, and we submit, in fact, that the
20 McKees were at home entertaining Mr Smith in this
21 kitchen and clearly were not at the Atkinson household.
22 Again, sir, we submit that it is extremely relevant
23 that there has been no breakdown in the relationship
24 documented between the McKees and Atkinson. Mrs McKee
25 has had no reason to get him in trouble. There had been
23
1 some vague suggestion that Michael McKee had assessed
2 Atkinson's daughter as being not good enough for
3 a Tae Kwon Do tournament. Really we say that it is
4 unlikely in the extreme that that would be a reason for
5 Andrea McKee and, indeed, Michael McKee to destroy
6 a good friendship, a friendship where they did stay
7 overnight, as we know, at the Atkinson home, they did
8 socialise together, they did practise their sport
9 together and they did travel together.
10 Despite that previous strong friendship and
11 relationship, Andrea McKee told the truth in 2000 about
12 Atkinson, and she has remained, since then, prepared and
13 willing to give evidence to do the right thing, to give
14 evidence against a previous firm friend.
15 Atkinson, on the other hand, was happy to implicate
16 his friends in this cover-up to effectively cover his
17 own back and to save himself. He was happy to do that.
18 He was happy to ask Michael McKee to cover the call and,
19 by implication then, Andrea McKee to become involved in
20 this web.
21 As Ms Winter indicated yesterday, the Police Service
22 of Northern Ireland in their submissions accept this
23 tip-off phone call -- accept the reality of it, and
24 that's at page 482 of the composite submissions, as they
25 also indicated the guilty pleas and sentences delivered
24
1 upon the McKees are the highest quality evidence in this
2 credibility assessment.
3 Fourthly, sir --
4 THE CHAIRMAN: Just before you move on, in relation to the
5 taking of Tracey Clarke's statement, to which P39 was
6 a witness, criticisms have been made of P39's competence
7 as a detective and about her integrity. We have to
8 remember, do we not, that those are two separate issues
9 and should not be elided?
10 MR DALY: I think that is correct, sir, yes.
11 If I could make some submissions, sir, in relation,
12 finally, to the credibility of Andrea McKee and the
13 Office of the Director of Public Prosecutions.
14 As I have indicated already, she has, since 2000,
15 remained a willing participant in these proceedings in
16 general terms, a person who has had the integrity, we
17 submit, to put herself forward and to do the right thing
18 in relation to this matter and to ensure, as far as she
19 can, or as far as she could, that she made herself
20 available to the criminal justice system in relation to
21 the investigation of other offenders and the prosecution
22 of other offenders.
23 You will have to make, again, an assessment of her
24 credibility in what she has said and in what she has
25 done. Potentially going against her in this regard is
25
1 the Pendine issue, which has been well documented, and
2 that may be something that potentially counts against
3 her credibility.
4 As against that, there are numerous matters, we say,
5 which count in her favour. Clearly, her child had been
6 ill. That's well documented. Clearly, she had been
7 willing to attend court previously. This was
8 a preliminary hearing, a committal hearing. Arguably,
9 the Pendine issue was a tangential issue to the core
10 issue. Clearly and fundamentally, she received herself,
11 in terms of her credibility, a prison sentence as
12 a result of coming clean, albeit that it was suspended,
13 and her husband Michael went to prison.
14 There is some suggestion in the combined submissions
15 that really the risk of prison was not that significant
16 in relation to Andrea McKee. In our respectful
17 submission, it clearly was. This was a grave criminal
18 offence, perverting the course of justice, and clearly
19 the authorities show that people serve prison sentences
20 if convicted of this offence.
21 If we can look at page [21851], this is the
22 pre-sentence report which was drafted in anticipation of
23 the sentencing process at Craigavon Crown Court, which
24 would have been drafted to assist the learned
25 Crown Court judge, Judge Curran. Just over the page,
26
1 please. Over the page again, please, and again.
2 The conclusion of this report on page [21854] is
3 that:
4 "Mrs McKee accepts full responsibility for her
5 commission of this offence and describes feelings of
6 great relief when she was eventually offered the
7 opportunity to set the record straight. She expressed
8 genuine remorse and regret for her behaviour and says
9 that, at the time, she felt under some pressure to take
10 the action that she did and made the false statement out
11 of misguided loyalty to her then husband.
12 "The defendant is fully aware of the seriousness
13 with which the court will regard her behaviour and the
14 significance of the part which she played in relation to
15 the death of a young man.
16 "5.2 (a). Clearly this offence is serious enough to
17 warrant a custodial sentence."
18 That was a report drafted on her behalf by the
19 relevant probation officer to assist the learned
20 Crown Court judge. Effectively, by the skin of her
21 teeth, she avoided an immediate custodial sentence
22 THE CHAIRMAN: Just help me. The solicitor, whose name
23 I forget but who acted for Andrea McKee in Wrexham
24 warned her, did she not, according to her evidence, that
25 she could face an immediate custodial sentence?
27
1 MR DALY: Yes. That was Catherine Jagger, solicitor.
2 THE CHAIRMAN: Thank you.
3 MR DALY: It is also clear, we submit, in relation to this
4 criminal process and Andrea McKee's involvement in it,
5 and her processing, that there was no inducement towards
6 her and, as a matter of fact, there was no deferral of
7 sentence in anticipation of an assessment as to whether
8 she would cooperate or not. The sentencing occurred,
9 and effectively, after that, she still put herself
10 forward as available and willing to the Director of
11 Public Prosecutions.
12 It is also of significant note, we would say, that
13 senior counsel, Mr Simpson, in his initial written
14 opinion in relation to her felt that she would be a very
15 good witness.
16 Finally, sir, it just remains for me to express in
17 relation to Andrea McKee that she remains perplexed to
18 this day why the prosecution did not take place in
19 relation to Atkinson when she remained at all times able
20 and willing to give evidence against him in a court.
21 She is acutely aware that she was convicted of this
22 offence, and she, similar to the Hamill family, feels as
23 though the criminal justice system has not seen this
24 matter through to a logical or necessary conclusion, the
25 conclusion that would have engendered confidence.
28
1 Thank you.
2 THE CHAIRMAN: Thank you, Mr Daly.
3 MR ADAIR: Sir, I wonder, could I correct something in
4 answer to Sir John's question about Mr Keys being asked
5 about Mr Hull?
6 I have looked at the transcript and don't see he was
7 asked about it. In case you have taken a note he was
8 asked, sir, I now can't find anything to suggest that he
9 was asked either by me or on behalf of Hull or anybody
10 else about the taking of the message. I just want to
11 correct what's in my mind, but clearly is not correct.
12 Hull was asked about it in some detail, but I can't see
13 that Hull was asked about it. It is not in his Inquiry
14 statement. So I am sorry if I potentially misled you
15 THE CHAIRMAN: I have amended our note.
16 MR UNDERWOOD: I was going to suggest we have a break for
17 the stenographer at this stage. During the break, we
18 will check that point.
19 THE CHAIRMAN: Yes. Thank you.
20 (11.30 am)
21 (A short break)
22 (11.45 am)
23 THE CHAIRMAN: Yes, Mr O'Connor.
24 Closing submissions by MR O'CONNOR
25 MR O'CONNOR: Mr Chairman, sir, I represent Alan McCrum and
29
1 Michael Irwin. I have some things to say in relation to
2 Alan McCrum which are outside of my written submissions
3 and I have some very brief things to say about
4 Michael Irwin after that.
5 If I could begin first with then Duty Inspector
6 Alan McCrum, Mr Chairman, sir, and Panel members, the
7 relevant terms of this Inquiry relevant to Alan McCrum
8 ask the question whether in terms, sir, any wrongful
9 omission, intentional or negligent on his part, or
10 failure to act with due diligence, obstructed the
11 investigation of Robert Hamill's death. Those, I say,
12 are the terms that are relevant to Alan McCrum in this
13 Inquiry.
14 Mr McGrory has said only yesterday or the day before
15 that his failures caused very significant damage to the
16 police investigation. Mr Wolfe for the PSNI suggests in
17 his written submissions that Inspector McCrum could have
18 done better in terms, and Mr Murray, the police expert,
19 says that there was a lack of intrusive supervision on
20 his part. So these are the terms used in relation to
21 Alan McCrum by way of criticism.
22 We say, Mr Chairman, that if you put a man's actions
23 in any scenario under a microscope such as this, you
24 will pick holes in his actions, but we submit that there
25 really was very little or nothing about
30
1 Inspector McCrum's actions on the morning of Saturday,
2 27th April 1997 which was other than reasonable in all
3 the circumstances in which he found himself.
4 Inspector McCrum's total involvement in the
5 investigation of the death of Robert Hamill lasted from
6 1.51 am in the morning until 8.15 am in the morning.
7 You will remember his evidence, which can be found
8 at page 8 of the transcript of his evidence. The
9 background that he gave to the Inquiry, and I will just
10 use his words briefly, he said that the context of
11 Portadown in the late 1990s was a very challenging one,
12 largely because of the shadow of Drumcree, and there
13 were circumstances during that time where the level of
14 officers would not have been sufficient to deal with the
15 level of disorder that occurred. He said that the
16 difficulty for policing was that so much of it was
17 spontaneous in this circumstance and it was not possible
18 to have a large level of resourcing available. That was
19 24/7 in his experience.
20 So at 1.51 am on 27th April 1997, Constable Godly
21 contacted him from communications and told him about the
22 disturbance. He went straight there, on his way
23 organised a riot gun. He went there with P89 as quick
24 as he could. To use his words, because he was:
25 "... aware there was an issue of officer safety and
31
1 it was important that I saw for myself the situation to
2 lead the response".
3 On arrival, he saw someone -- this is his
4 evidence -- being put into the back of an ambulance, but
5 no fighting. He said:
6 "For me, at that stage, this was simply another
7 Saturday night disorder situation in Portadown". He
8 said, "Ambulances were, sadly, pretty regular in
9 Portadown at that time, almost nightly".
10 Mr Murray in his initial report praised
11 Inspector McCrum in that report and he said that
12 Inspector McCrum did "quickly bring the situation under
13 control by the rapid deployment of staff".
14 If I move on then to the scene, Constable Cooke told
15 Mr McKenna in evidence that he spoke to P89 and
16 Inspector McCrum at the scene. His words in his
17 evidence were that he told them the basic facts. Those
18 were his words in his evidence. I suggest that it is
19 not a fairly detailed briefing, and those were the words
20 used by Mr McGrory in his submissions. Inspector McCrum
21 says that he was never told anyone was unconscious.
22 Constable Cooke said in his evidence that he
23 believed he did tell Inspector McCrum that two were
24 unconscious. However, when he was being interviewed for
25 this Inquiry by Joy Hopkinson, what he said was
32
1 "I described what I found on arrival, two injured people
2 being attended". At that stage, he made no mention of
3 unconsciousness. That was in his Inquiry interview
4 THE CHAIRMAN: This is what Mr McCrum was saying?
5 MR O'CONNOR: This is what Constable Cooke said to
6 Joy Hopkinson.
7 THE CHAIRMAN: Yes.
8 MR O'CONNOR: He also said in evidence that there was not
9 an abnormal amount of glass around the street, which is
10 another aspect. This is what Inspector McCrum faced
11 when he arrived at the scene.
12 I should say also that Chief Inspector
13 Henry McMullen, who was the duty officer that night,
14 said that persons being taken to the hospital after
15 incidents of unrest in Portadown, to use his words, was
16 "a regular occurrence".
17 So the tenor of Mr McCrum's evidence is that he
18 found a normal Saturday night here. Nothing dissuaded
19 him from that at the scene.
20 In relation to scene preservation, we agree with
21 Mr Underwood's written submissions which include
22 consideration of Karen Kennedy's report, Colin Murray's
23 report and Ken Armstrong's report. To paraphrase
24 Mr Underwood, there is no reason to believe that
25 anything of forensic value was lost. It was the early
33
1 hours of the morning, Mr Chairman. The area was closed
2 off to traffic. An officer stayed at the scene until
3 SOCO arrived. The street sweeper was stopped.
4 Also, Ken Armstrong said that all this was at a time
5 when there was not the training and resources which are
6 available to the PSNI today, to keep it in that context,
7 Mr Chairman. He distinguished then and now in terms of
8 training and resources.
9 The next point, Mr Chairman, is leaving the scene.
10 Inspector McCrum spent about an hour at the scene.
11 During this, he dealt well with quelling the disorder,
12 as I have mentioned, and moving the Loyalists up the
13 town. We know he spoke to Constable Cooke and he says
14 he spoke to Constable Neill. He was confident he had
15 told officers to make a note and he wasn't satisfied
16 that he knew how serious the injuries were. So what he
17 did, when things had settled down, was he sent P89 off
18 to find out how serious the injuries are.
19 So he had spoken to officers at the scene. He had
20 been speaking to officers during the time he is moving
21 the Loyalists up the town, but because he is not sure of
22 how serious the injuries are, that's why he sends P89 to
23 the hospital.
24 THE CHAIRMAN: There is criticism that he could have
25 enquired of officers who have been at the scene how
34
1 badly hurt they thought anyone was. Do you want to say
2 anything about that?
3 MR O'CONNOR: His answer to that is that he did speak to
4 officers at the scene and nobody gave him the impression
5 during all of that time that there was an injury -- why
6 would he send someone to the hospital if there were
7 people standing beside him that he could ask about that?
8 Surely it has to be inferred from the evidence that the
9 reason P89 was sent to the hospital was to find out, as
10 P89 himself says, how serious the injuries were.
11 If he knew -- it may have been fairly pointless to
12 send P89. He may have put the fast-track things in
13 motion at that stage. He might have taken other steps.
14 There was nothing at the scene to alert him during the
15 whole hour he was there.
16 This is obviously a bone of contention in this
17 Inquiry, and you have to ask yourselves why a duty
18 inspector there, who was in charge, would not ask during
19 all of that time, and he says he did. Because he wasn't
20 sure, P89 goes to the hospital.
21 Inspector McCrum stayed around for a further
22 fifteen minutes more, roughly, leaving an officer in
23 a car at the scene and went about his other business.
24 Now I am trying find it, Mr Chairman. I think
25 I will come across it. Just to be sure I mention this.
35
1 I may have to mention it again. P89, as I understand,
2 said in his evidence that when he was driving to the
3 hospital, he had no idea either how serious the injuries
4 were. You will find that in his evidence, Mr Chairman.
5 He went on about his other business. Inspector McCrum
6 was the duty inspector for Banbridge and Lurgan. He was
7 only away for one hour and then he was back to the
8 station. He visited Lurgan and he visited Banbridge.
9 We have the note on the record at Banbridge at 3.10. It
10 is about 11 miles from Portadown. He was not doing
11 nothing, he was doing his other duties, and only away
12 from Portadown for an hour.
13 During that time, P89 had gone to the hospital and
14 was back at Portadown station. He was the officer -- he
15 was the sergeant in charge of Portadown Police Station.
16 He had been to the hospital, had been rebuffed by
17 someone, couldn't find out what the condition was.
18 Now, he didn't contact Inspector McCrum at any stage
19 to say, "Look, I can't find out what the condition was".
20 He felt, presumably, that he could tell him when he saw
21 him, which wouldn't have been very long. He knew he
22 would have been on his way back.
23 Inspector McCrum was not contacted. A suggestion
24 was made by my friend Mr McKenna that, if he was not
25 contacted by P89 during that hour, he ought to have been
36
1 doing something. Well, he was doing his other duties.
2 He had sent the man off to find out what the injuries
3 were. It could be inferred from that and should be,
4 I say, inferred from it, that if there was -- if there
5 were serious injuries, or if P89 had found serious
6 injuries, or felt he would not be able to see his
7 inspector for a long time, he may have phoned him or got
8 him on the radio, but that was not done. It was during
9 the course of something less than an hour.
10 I submit it would not be incumbent upon the
11 inspector in these circumstances to go chasing the
12 information unless it had not come maybe for another
13 hour or two, but it was a reasonable period that
14 elapsed.
15 THE CHAIRMAN: Can you help us about this? We have been
16 told by some witnesses that the sheer numbers of people
17 involved made this an incident, regardless of injury,
18 quite beyond the ordinary Saturday night punch-up that
19 one might expect in the centre of Portadown.
20 One matter we shall have to consider is whether that
21 is right, and we shall have to consider also whether the
22 need to visit Portadown -- not Portadown, Lurgan and
23 Banbridge -- whether there was anything so urgent that
24 needed his attendance there, or whether, for instance,
25 a telephone enquiry might have sufficed, bearing this in
37
1 mind: things being what they were in the public's
2 feelings in Portadown, getting help from the people who
3 were at the scene, who would be more youngish people
4 than not, was a very reasonable hope. If not, the time
5 which passed immediately after the incident was of
6 increased value in trying to recover evidence that might
7 be used for scientific purposes and to recover people's
8 memories.
9 Do you want to say anything about that? It is
10 rather a long question. I am sorry.
11 MR O'CONNOR: I understand the question, Mr Chairman. In
12 relation to Inspector McCrum in all the circumstances
13 his position is very clear. He didn't view this as
14 something very much more, let's say -- in fact, he said
15 it was like any other Saturday night in Portadown.
16 THE CHAIRMAN: Yes, I know.
17 MR O'CONNOR: There is conflicting evidence -- I don't have
18 it to hand -- in relation to the scale of the disorder,
19 but when Inspector McCrum comes down to the scene, he
20 has given his evidence, I suggest, in a cogent,
21 understandable manner. He comes down to the scene and
22 says all the things I have mentioned already. He does
23 all these things. Taking everything into consideration,
24 he doesn't make the assessment that this was something
25 more than your normal Saturday night. Of course, there
38
1 may have been a few more people on this occasion than
2 the week before, but it doesn't go outside the
3 parameters of a normal Saturday night in Portadown.
4 Portadown seems to be a bit special in this regard. It
5 seems to have a problem.
6 You will recall the amount of flash points he has
7 talked about in his evidence. There is no doubt there
8 are still problems in Portadown. What he says is, and
9 you have to gather up all the other little pieces of
10 evidence, Mr Chairman, as no doubt you will, but I say,
11 when you put it all together, that this was not
12 a serious riot situation, from the point of view of the
13 RUC, in those circumstances, in those times, and that
14 there was nothing for -- if we go back to the point: why
15 would he send P89 off to find out the seriousness of the
16 injuries, if he already knew the seriousness of the
17 injuries?
18 If he saw people unconscious, if he did see the two
19 ambulances, if people were telling him, "Look, two
20 people have been taken away unconscious", why would he
21 send off -- rather than start talking to people and
22 taking maybe some more -- getting the officers together
23 on the scene and getting them together, there is no
24 reason why he wouldn't have done that and there is no
25 reason why he wouldn't have made the phone call.
39
1 You have to go back to the point. His point is very
2 simple. There was nothing so much out of the ordinary
3 that he would not go about his other duties. So that's
4 really -- if you then take all the little bits of
5 evidence in due course and feel that the weight of the
6 evidence is that there was something way over and
7 above -- a real riot situation, a man standing there and
8 doing nothing about it, then I can do nothing about that
9 in my submissions, but, to me, it doesn't make sense
10 THE CHAIRMAN: Do you accept that although one indicator and
11 an important indicator of how serious an incident has
12 been is the gravity of any injuries suffered, another
13 indicator is the number of people involved in
14 a disturbance?
15 MR O'CONNOR: Yes. I am not the police inspector on the
16 scene making that judgment call and I wasn't there. My
17 submission in relation to that is very simple. He was.
18 He was experienced. To that extent, to say that he
19 pushed the Loyalists up the town, he talked to the
20 people, I accept that he talked to -- he got a sense of
21 the seriousness of it in his own head and then should
22 have made a different decision, it is us putting
23 ourselves in his position when it is very difficult to
24 do that.
25 I commend his evidence to this Inquiry in terms of
40
1 all of that. His evidence was reasonable, measured and
2 made sense. There was nothing -- there was no advantage
3 to Inspector McCrum not to stay there further and gather
4 everybody round. That was not normally done in those
5 days. I will come on to that. That's in relation to
6 debriefing and I will come to that, but it didn't seem
7 that anybody said that you would normally gather round
8 at the scene and compare notes or compare what you had
9 seen at that stage. It was done back at the station,
10 and I am coming to that, about debriefing, in due
11 course, Mr Chairman.
12 THE CHAIRMAN: Well, the station was so close to the scene
13 perhaps it is rather academic to say: should it have
14 been done at the scene or the police station?
15 MR O'CONNOR: Yes.
16 THE CHAIRMAN: That would be quite acceptable perhaps.
17 MR O'CONNOR: That's a good point.
18 Then if I can move on. So from 3 o'clock to
19 4 o'clock, when Inspector McCrum is doing his other
20 duties, P89 had briefed the Land Rover crew going out
21 12 hours earlier. There is no reason why he wouldn't
22 debrief them when they come off duty and he is there.
23 I am not sure there is a big lot of evidence in
24 relation to whether the Land Rover crew was there when
25 P89 was there initially. He got involved with a drink
41
1 driver and his time was taken up to a large extent
2 around that time as well, but from Inspector McCrum's
3 point of view, the duty sergeant was back shortly after
4 going to the hospital. The Land Rover crew are coming
5 off duty around 3 o'clock, after a 12-hour stint, and
6 there is someone there to debrief them, if necessary.
7 As I say, I will come to debriefing. I think the
8 evidence from Mr McCrum was that the duty sergeant had
9 briefed them and could debrief them.
10 In relation now to debriefing, it is our submission
11 that debriefing in the PSNI at that time was a moveable
12 feast. Regardless of what the more senior officers have
13 said about it to this Inquiry, the evidence doesn't
14 support any proper structure of debriefing within the
15 RUC in 1997, because the constables and the reserve
16 constables almost to a man told us that.
17 I have listed out in my written submissions, and
18 I don't want to go through them in any great detail, but
19 I can briefly remind the Inquiry of what the various
20 constables said as quickly as I can.
21 Constable Dean Silcock said that briefing was rare.
22 Nothing he could have said in a debriefing -- there was
23 nothing he could have said in a debriefing which was not
24 in his statement.
25 Constable A: often it was known -- after it was
42
1 known that injuries were more serious, then she would
2 have expected the CID to hold a debriefing, but only at
3 that stage.
4 Constable John Adams said the debriefings were not
5 regular or formal after a public order incident like
6 this. So here is someone, Constable John Adams, being
7 on the ground and saying "an incident like this". That
8 is an example of an officer saying this was an incident
9 that wouldn't have required a debriefing, an example of
10 the little bits of information that --
11 THE CHAIRMAN: I have a little difficulty, which you can
12 perhaps deal with, about the proposition that an officer
13 can correctly say, "Well, I recorded what I saw. There
14 was nothing I could add".
15 The more people you have involved, and there were
16 a lot of people involved here, and the wider the area,
17 which was spread over quite a wide area, the more
18 difficult it is for an officer to have seen everything,
19 and the easier it is for there to be something of which
20 he saw a tiny part that didn't seem relevant, but might
21 be shown by what somebody else says to be relevant, and
22 the harder it is if he, in effect, censors what he
23 discloses. I don't mean that in any pejorative way. It
24 becomes difficult to form any timescale of an incident.
25 What do you say about that? Hence the need for
43
1 debriefing.
2 MR O'CONNOR: I don't say there is anybody in this Inquiry
3 would say there was not a need for debriefing. What
4 I am saying is on the ground, in those days, it didn't
5 happy in any formal way. In many ways it is fairly
6 pathetic that a constable would say such a thing, that
7 there was nothing he could put into his notes that
8 wouldn't be in his statement or vice verse. That shows,
9 in my respectful submission, a want of training, a want
10 of procedure and --
11 THE CHAIRMAN: So you say any criticism should be directed
12 at the system rather than at Mr McCrum?
13 MR O'CONNOR: Absolutely, yes. In this circumstance, he is
14 a duty inspector. Talking about his experience, he was
15 not an inspector for that long, as I recall, but he was
16 operating a system that was ongoing. All the constables
17 and all the reserve constables tell you, Mr Chairman,
18 what that system was, and they disagree themselves about
19 what a debriefing was.
20 Having said that, I come on to the point that he did
21 take a large number of steps in terms of what one might
22 term debriefing in relation to asking Constable Cooke to
23 make a list, bring back the officers and get them and
24 present them to Don Keys.
25 I am really just at the stage of debriefing and the
44
1 term used, "debriefing". If an organisation is saying
2 that they are disappointed in this officer or that
3 officer for not doing more, what is it about -- what
4 does it say about the organisation in terms simply about
5 this net point about debriefing, that none of the
6 officers could really tell the Inquiry what they
7 understood? All the understandings were different.
8 I will briefly just sum up what the other people
9 said.
10 Constable David Orr. 30 years in the police. To
11 him, debriefing meant being asked to make a statement.
12 Reserve Constable Paul Warnock agreed with
13 Constable Orr and would have expected his statement to
14 be read shortly after he made it.
15 So no note, just make a statement and then somebody
16 will read it shortly afterwards.
17 Reserve Constable James Murphy found formal
18 debriefing very, very rare. No such thing as a regular
19 debrief at the time. Again, he says he would have
20 expected his statement to have been scrutinised,
21 compared and contrasted, once handed over.
22 Constable Gordon Cooke, 27 years in the police,
23 said, "Inspector McCrum made it clear my crew had to
24 remain and speak to CID before finishing duty". He said
25 this was normal and there was no such thing as
45
1 a structured debriefing unless it was a pre-planned
2 operation, so something more than what he found on the
3 ground.
4 Then Constable Cooke felt Inspector McCrum -- this
5 was Constable Cooke's words about what Inspector McCrum
6 was trying to do back at the station -- was trying to
7 ensure everything that could be done was done.
8 Constable Cooke, you will remember, was then --
9 Inspector McCrum's evidence was he was asked to draw up
10 a list of persons at the scene by Inspector McCrum
11 because he was experienced and because he knew the
12 Portadown area best.
13 So that's my submissions on top of what I have
14 written in written submissions in relation to that.
15 So what did Inspector McCrum do from 4 o'clock in
16 the morning until 8.15? That's when he gets back to the
17 station. We submit that Inspector McCrum -- what
18 Inspector McCrum did after 4 o'clock makes it clear that
19 he genuinely hadn't considered earlier events to be
20 anything more than a normal Saturday night in Portadown.
21 So if you contrast what he did when he found out the
22 injuries were serious, we say that is also evidence that
23 he had not previously thought this to be serious.
24 Just in case anybody would think that he wouldn't
25 take steps if it was serious, say, at 2 o'clock or 2.30,
46
1 what he did after 4 o'clock shows that if he had, in his
2 experience and being on the ground, felt that it was
3 serious, he would have taken steps, as he did at
4 4 o'clock, we say.
5 Now you have, in the middle of the night, from
6 4.00 am to 8.15 am, a man coming back to the station,
7 speaks to P89, finds out couldn't get information from
8 the hospital, immediately gets on the phone and finds
9 out himself. He stays on the phone until he finds out,
10 unfortunately, Mr Hamill is much worse than he had
11 thought.
12 I have listed out 15 things between that time, in my
13 written submissions, that Inspector McCrum did on the
14 evidence. It is not what he said he did. It is what
15 actually is the evidence in this Inquiry. If I may run
16 through, Mr Chairman, and just stop at two of those
17 things.
18 He spoke to Sergeant P89
19 THE CHAIRMAN: If you can just give us the reference to the
20 page number in the submissions. I don't mean not tell
21 us what you were going to tell us, but just as a guide
22 for us.
23 MR O'CONNOR: I think it is part 9, paragraph 8.155, I am
24 pretty sure.
25 THE CHAIRMAN: This is where the list of 15 things begins?
47
1 MR O'CONNOR: Yes. What I did in my written submissions was
2 list out simply the things that appear in his journal,
3 which I'll come to. There are a number of things which
4 appear itemised in writing in his journal and they are
5 included in this and I will deal with those.
6 First of all, if I may, eight of the fifteen things
7 in the journal. The journal was produced in the witness
8 box, and I arranged that purposely, because what had
9 happened was the Inquiry had taken away the journal and
10 photocopied two pages of his journal.
11 Constable Cooke and Constable Orr, for example,
12 which I will come to, say they were not told to go to
13 the hospital to get the clothes of the injured parties
14 and there is a note in Inspector McCrum's journal, which
15 I will come to, but the reason I asked him to bring his
16 journal into the witness box was that there are
17 pages before and after in the original journal which
18 show his duties before and his duties after. It is all
19 in his handwriting. It all flows. It shows that those
20 entries are contemporaneous, in my respectful
21 submission. That's strong, powerful evidence in regard
22 to Inspector McCrum, because that's a written account
23 contemporaneous of what he did that night in his
24 journal.
25 Now, we went over when he was on duty before and
48
1 after the days. If you go back to the transcript,
2 Mr Chairman, you will see that I did that on purpose to
3 enforce the strength of his journal entries. His
4 evidence is that he filled in his journal before going
5 off duty at 8.15. In my respectful submission -- and
6 I made the point, "Did you know, when you were filling
7 in your journal at 8.15 that morning, that 11 or
8 12 years later you would be asked to give some evidence
9 about it in a public Inquiry?"
10 Just to make the point, Mr Chairman, not in any
11 clever way, hopefully.
12 In his journal he has a record of certain things and
13 I am going to deal with the importance of those just
14 now, briefly.
15 First of all, what he did from 8 o'clock, and not in
16 isolation -- these are things that are before the
17 Inquiry. There is evidence about these things before
18 the Inquiry. In between times, we have to understand
19 that he is doing other things. They may all be to do
20 with the investigation, but these are things that are
21 before the Inquiry.
22 He spoke to P89 to update himself.
23 He rang the hospital and spoke to the doctor.
24 He made the decision that the injuries were more
25 serious than at first thought and this was now a serious
49
1 matter.
2 He phoned the duty CID man, Don Keys. The evidence
3 is that was between 4.40 and 4.45 am. So he'd wasted no
4 time really in phoning Don Keys.
5 Then he selected PC Cooke, who had local knowledge,
6 to draw up a list of persons identified at the scene
7 with other section officers. PC Cooke chose not to
8 consult with the other officers, you will remember.
9 There was that question about whether he should or he
10 shouldn't.
11 In relation to drawing up a list, Mr Chairman and
12 Panel members, there was a criticism I am coming to now
13 about a lack of debriefing. There was criticism in the
14 Inquiry that a lack of debriefing meant that no list was
15 drawn up, but Inspector McCrum's evidence was that he
16 asked Constable Cooke to go round drawing up a list. It
17 is recorded in the journal that Constable Cooke was
18 asked to do exactly that.
19 Now Constable Cooke, at page 22 of the transcript of
20 his evidence, said that he didn't do it in those terms,
21 because he was cautious about consulting with other
22 officers before making a statement. There were some
23 discussions about whether an officer should, if you
24 remember, go round getting other officers' evidence or
25 whether he should make his own statement first and then
50
1 collate the statements, and there was some discussion
2 about whether in a court -- how that stands up in
3 a court. So he was cautious about going round the
4 others. He wondered whether an officer should do that.
5 Constable Cooke told Mr Ferguson, QC, that there was
6 nothing left out of his statement. In Karen Kennedy's
7 investigation of the Inquiry documents, which is
8 page [10138], when asked if he was told to draw up
9 a list, he told the Kennedy investigation he
10 went one better than drawing up a list and made
11 a full written statement identifying all the persons.
12 So he didn't deny drawing the up the list when he
13 was interviewed in the Kennedy investigation.
14 I respectfully submit to the Inquiry that the
15 implication is clearly that Constable Cooke was asked to
16 draw up a list and was -- as was recorded in
17 Inspector McCrum's journal.
18 Then I have mentioned the record --
19 THE CHAIRMAN: Are you saying that Cooke misunderstood his
20 instructions? Because, as I understand it, Mr McCrum
21 says he told Cooke not simply to draw up his own list,
22 but to get a list from those involved or those who had
23 been at the scene, or the names of those involved. So
24 are you saying Cooke misunderstood his instructions?
25 MR O'CONNOR: I think it is very clear that Constable Cooke
51
1 understood his instructions, but what he -- how he
2 carried out those instructions was to say, "I will make
3 a statement", and, again, that goes back to the
4 debriefing. What they have all been doing is making
5 a statement. They don't take too many notes by the
6 sound of it at that time. They make statements.
7 Constable Cooke is just doing what he always did. He
8 interprets the instructions to draw up a list by simply,
9 he says himself, "I went one better".
10 THE CHAIRMAN: It is not, in fact, necessarily one better,
11 is it? It is simply Cooke's own recollection.
12 MR O'CONNOR: Yes. I am saying what his recollection is.
13 He does not deny that he's told to draw up a list when
14 he is talking to Karen Kennedy. He says "I went one
15 better than drawing up a list, I made a full written
16 statement".
17 So I am saying it is clear that he was asked to draw
18 up a list, and the way he drew up the list was he put
19 those people into his statement.
20 If you accept the power of the written journal, the
21 force of that as evidence, again Constable Cooke and
22 Constable Orr were asked to go to pick up the clothes at
23 the hospital. It is as simple as that.
24 THE CHAIRMAN: I think we have had evidence of this, but you
25 can perhaps remind me, does the journal show the dates
52
1 upon which the records were made?
2 MR O'CONNOR: I asked specifically for the original journal
3 to be left with the Inquiry because it was returned to
4 Inspector McCrum after it was photocopied. As it turned
5 out, when I consulted with him, he had still got the
6 hard copy journal, and I felt, reading over it, this was
7 powerful evidence. I asked it be handed over to the
8 Inquiry and it should be with the Inquiry still. So you
9 can have a look at that, Mr Chairman, if you like.
10 THE CHAIRMAN: Are you able to tell us whether it gives the
11 date on which the entries was made?
12 MR O'CONNOR: Oh, yes. Not just that. It is
13 contemporaneous. The dates are there and the times are
14 there.
15 THE CHAIRMAN: Thank you.
16 MR O'CONNOR: Just a couple of minor points, Mr Chairman.
17 I have made written submissions. Mr McCrum accepts that
18 the initial press release was misleading. His evidence
19 is -- just to cover the press release point -- it is
20 unfortunate the repercussions it has had on what people
21 have thought about that.
22 My suggestion is, to slant the press release, or to
23 put in something in a press release that was not true,
24 would have been -- having heard Mr McCrum's evidence and
25 listened to what he did -- of any interest to him at
53
1 all. I am suggesting there is no mala fides in the
2 wording of the press release. There is no evidence or
3 there can be no suggestion of any ulterior motive for
4 that, in my respectful submission, and the Inquiry
5 should conclude in relation to that this was based on
6 information he had at the time, which he said.
7 In conclusion in relation to Mr McCrum, Mr Chairman,
8 at paragraphs 78 and 79 of Mr McGrory's written
9 submissions there is a suggestion that Inspector McCrum
10 fought the administering of an admonishment because he
11 was waiting until he was promoted.
12 I say that's a slur on the good character of now
13 Chief Superintendent McCrum, who still serves the PSNI.
14 He was not asked: was that the reason? Factually, that
15 is what happened. He did gain a promotion and then he
16 did eventually accept the admonishment, but his evidence
17 is very clear that he accepted the admonishment but not
18 the facts of the admonishment. He has given evidence
19 and it is clear that, the evidence he has given, he
20 still would deny the facts of the admonishment
21 THE CHAIRMAN: Does that amount to saying, "There was no
22 basis upon which I should have been admonished"? It is
23 a bit like a man saying "I know I pleaded guilty, but
24 I wasn't really", isn't it?
25 MR O'CONNOR: If I can take it from another angle,
54
1 Mr Chairman, and make you understand what I am trying to
2 say, under the RUC Disciplinary Appeals Regulations 1988
3 there are formal disciplinary procedures. You have
4 formal procedures and then you have informal procedures
5 after that, which don't form part of those regulations.
6 Admonishment is an informal procedure.
7 Mr McCrum, had he not accepted the admonishment, may
8 or may not have gone on to formal disciplinary
9 procedures. It is a matter for his superiors to decide.
10 He didn't have to accept the admonishment. That's
11 a matter for -- others didn't. What is open to the
12 Disciplinary Appeals Panel under those 1988 regulations
13 applicable at the time were much more serious findings
14 and recommendations or actions which include dismissal,
15 requirement to resign, reduction in rank, reduction in
16 pay, fine, reprimand, caution. Those are the things
17 that could be found under an appeal, a disciplinary
18 appeal.
19 Now after that, after those things, getting down
20 below a fine, a reprimand and a caution, you have
21 an admonishment. This inspector, his record speaks for
22 itself. He is now a serving -- the most senior serving
23 member of the PSNI in this Inquiry and this is the only,
24 as I understand it, time he has ever had an admonishment
25 or anything else. That was 12 years ago
55
1 THE CHAIRMAN: Does the acceptance of admonishment mean
2 acceptance of fault?
3 MR O'CONNOR: Of the facts of the admonishment?
4 THE CHAIRMAN: Of fault.
5 MR O'CONNOR: What Mr McGrory is asking this Inquiry to
6 infer is that he delayed accepting --
7 THE CHAIRMAN: My question is not directed to that.
8 MR O'CONNOR: The answer to that is no.
9 THE CHAIRMAN: So he was admonished, accepted his
10 admonishment, but was not at fault?
11 MR O'CONNOR: You have heard all the evidence about that,
12 Mr Chairman. He used the term in one of his statements
13 that he accepted it under duress. He accepted it under
14 legal advice.
15 Essentially, what he was faced with 12 years ago,
16 when he was faced with an admonishment, was something
17 much more minor than any of these formal disciplinary
18 proceedings. It was a question of, "Do I accept this
19 and get on with it?", in other words, take your medicine
20 and get on with it? It is at a very low level of what
21 could be done in disciplinary proceedings, and that's
22 the way it was treated.
23 It hasn't impeded him through a long, distinguished
24 career rising through the ranks of the RUC and serving
25 the public very well subsequently.
56
1 THE CHAIRMAN: So you submit we should ignore entirely the
2 acceptance of the admonishment?
3 MR O'CONNOR: I think if you hear his evidence and read his
4 statements, you will see he was not happy accepting it.
5 THE CHAIRMAN: It is a very simple question and I hope it
6 can be answered "yes" or "no".
7 Are you saying we should ignore the fact that he
8 accepted the admonishment?
9 MR O'CONNOR: I suppose, if it is put in that blunt way,
10 I say yes.
11 THE CHAIRMAN: We should ignore it. Thank you.
12 MR O'CONNOR: If I can qualify my answer, and I think it is
13 an unfair question, Mr Chairman, because he has given
14 his reasons why he accepted it.
15 THE CHAIRMAN: It was a tactical acceptance. Is that a fair
16 way of putting it?
17 MR O'CONNOR: A qualified acceptance. If you put it in
18 those stark terms, I think it is unfair to
19 Inspector McCrum. He has given his reasons why he
20 accepted the admonishment. He has always said he did
21 not accept the facts of the admonishment. Whether you
22 should ignore that or not, you have to take all the
23 evidence on board to decide that, and there is quite
24 a bit of it.
25 THE CHAIRMAN: Very well. Thank you. So we come now to
57
1 Mr Irwin, do we?
2 MR O'CONNOR: I think we nearly do, Mr Chairman, if you bear
3 with me.
4 Yes, Mr Chairman, I am happy to finish on that.
5 THE CHAIRMAN: I was not trying to hurry you on. I thought
6 you had finished.
7 MR O'CONNOR: I am almost finished. I just wanted to
8 deal -- the wording of Mr McGrory's written submission
9 grates on me, Mr Chairman. That's why I am reluctant
10 just to finish. He said that the public should be
11 concerned about this serving -- the word he used was
12 that the public may have "concerns". Whether he used
13 the word "grave" or not, I can't remember.
14 While I am here on the record, I want to say, in
15 terms of Inspector McCrum and where he is now in the
16 police, the public should look at this as this was
17 a low-level disciplinary matter. It wasn't formal. It
18 was informal. At the time -- unfortunately, things have
19 happened since, but 12 years ago, this was
20 an admonishment. There is nothing else on this man's
21 record and the public should have no concern whatsoever.
22 That's my point.
23 THE CHAIRMAN: Yes.
24 MR O'CONNOR: Now I am moving on to -- Mr Chairman,
25 I literally have only five minutes in relation to
58
1 Mr Michael Irwin.
2 THE CHAIRMAN: I am not trying to hurry you.
3 MR O'CONNOR: Thank you.
4 Again, I have done my oral submissions on the basis
5 that we should comment on each other's written
6 submissions. I have just a few things to say about
7 that.
8 The BIRW/CAJ at page 616 make comments which
9 I refute and they were not backed up in the evidence.
10 Unfortunately, I don't have the page with me, 616, but
11 the implication of what was said is in relation to the
12 CCTV point and the meeting between Michael Irwin and
13 Diane Hudson and Fiona O'Reilly, the two Hamill sisters
14 who gave evidence about it.
15 In relation to just briefly the CCTV point,
16 Detective Constable Keys looked at the tapes.
17 Detective Inspector Irwin never saw the tapes. DC Keys
18 was, in my respectful submission, very credible in his
19 evidence about that, that there was nothing on the
20 tapes.
21 We take exception to the submission by the British
22 Irish Rights Watch at the bottom of page 616 which
23 implies that Michael Irwin said that Diane Hudson or
24 Fiona O'Reilly, the Hamill sisters, were lying, and he
25 doesn't say that. Specifically at page 44 of the
59
1 transcript of his evidence Detective Inspector Irwin
2 said and I quote:
3 "Now whether I didn't explain myself properly or in
4 the circumstances it was taken up wrongly ..."
5 That's what Detective Inspector Irwin said. He
6 never said anything contrary to that. It is my
7 respectful submission this was a misunderstanding in
8 an emotionally-charged situation. Anyone who heard
9 Mr Irwin give evidence or anyone who gave evidence about
10 him found him to be a particularly dedicated individual,
11 a dedicated detective inspector in everything he did,
12 and that he did everything in his power to properly
13 investigate Robert Hamill's murder and catch the
14 killers.
15 There is one minor point at page 687 of the PSNI's
16 submissions. I note, and I ask the Inquiry to note,
17 that the PSNI accept that there was a breach of the
18 appropriate structures, resources and training within
19 which people like Mr Irwin had to work.
20 Mr McGrory was asked by you, Mr Chairman, to get off
21 the fence about Michael Irwin in relation to
22 challenging -- whether he ought to have challenged
23 DCS McBurney or not. I suggest that weakly he said he
24 should have challenged him, didn't go on much about it,
25 but it is my respectful submission, in light of all the
60
1 evidence, including the McBurney tapes, Chris Mahaffey,
2 the Ombudsman -- for the office of the Ombudsman, and
3 Colin Murray, who revived his opinion later , in light
4 of all that evidence, which can be found at part 14 of
5 my submissions, Mr Chairman, that Mr Irwin should not
6 have challenged DCS McBurney or the Inquiry should not
7 hold or make a finding he should have challenged
8 DCS McBurney.
9 If I can just briefly summarise my written
10 submissions in relation to that one point, the evidence
11 of DI Irwin and his actions in taking the controversial
12 statement from Andrea McKee comes from a number of
13 sources. Chris Mahaffey, following an extensive PONI
14 investigation, decided that DI Irwin took Andrea McKee's
15 statement only because he was ordered to.
16 ACC Raymond White said he would have expected
17 DI Irwin to follow DCS McBurney's orders. Colin Murray
18 provided an updated report and revised his view on
19 DI Irwin. Now, not criticising DI Irwin at all.
20 Colin Murray said DI Irwin was a good detective
21 inspector, very thorough, very diligent, very active.
22 He said that DI Irwin was the driving force behind the
23 investigation and he tried to bring the investigation to
24 a satisfactory conclusion and there was not much more
25 that he could do.
61
1 I just also commend to the Inquiry the tenor and
2 attitude of DI Irwin's evidence in the witness box. He
3 gave evidence for a day and a half. He answered every
4 question put to him without shirking, and he made some
5 concessions when it was put to him, "You might have done
6 that. It might have been done better", and that's the
7 evidence of an honest witness, in my submission. It is
8 not a matter for me to decide, but I would ask the
9 Inquiry to look at that again.
10 In conclusion, DI Irwin served the RUC all of his
11 life. His most recent employment was as a trusted
12 redacting officer for the Rosemary Nelson Inquiry, and,
13 following the end of that Inquiry, he is now retired.
14 One hopes that, when the Inquiry's report is written,
15 perhaps good police work will also be worthy of comment.
16 Those are my submissions, Mr Chairman
17 THE CHAIRMAN: Thank you very much, Mr O'Connor.
18 MR UNDERWOOD: Sir, I am very grateful for Mr Daly and
19 Mr O'Connor stepping up to the plate days ahead of their
20 scheduled appearance here.
21 Can I tell you why we are having slight disruptions
22 to the smooth running? It is that Sir Ronnie Flanagan's
23 team are taking instructions about the way in which to
24 deal with the matters which were addressed yesterday
25 about him. So that has rather thrown people out of
62
1 sequence, I am afraid.
2 What is proposed at the moment is that Mr McComb
3 will go tomorrow in respect of his clients for whom
4 Mr Monteith acts. Tracey Clarke is separately
5 represented, as I think you know, and she will have
6 submissions made on her behalf next week.
7 I think it is highly likely that I can invite you
8 not to sit on Friday. Although at present we have
9 people scheduled to sit on Friday, it would be another
10 short day and rather than have a collection of short
11 days, it would be better, I apprehend, to collect
12 submissions for next week. In the meanwhile, work can
13 be done on the question of what's going to happen with
14 Sir Ronnie and dealing with the matters that have
15 arisen.
16 That is, I am afraid, all I can offer you for today,
17 though
18 THE CHAIRMAN: So 10.30 tomorrow?
19 MR UNDERWOOD: Please.
20 THE CHAIRMAN: Thank you.
21 (12.50 pm)
22 (The hearing adjourned until 10.30 tomorrow morning)
23
24 --ooOoo--
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