Transcripts
Return to the list of transcripts
Transcript (Morning Session)
Hearing: 16th December 2009, day 76
Click here to download the LiveNote version
- - - - - - - - - -
PUBLIC INQUIRY INTO THE DEATH OF
ROBERT HAMILL
- - - - - - - - - -
Held at:
Interpoint
20-24 York Street
Belfast
on Wednesday, 16th December 2009
commencing at 10.00 am
Day 76
1 Wednesday, 16th December 2009
2 (10.00 am)
3 Closing submissions by MR ADAIR (cont.)
4 THE CHAIRMAN: Yes, Mr Adair.
5 MR ADAIR: Thank you, sir.
6 Panel, I dealt with the first stage that Mr McGrory
7 says that there was a lacking of the best investigative
8 strategy.
9 The second stage relates to the interview of
10 Atkinson on 9th September, which we all know about.
11 Comment, of course, has been made in relation to the
12 delay between the obtaining of the telephone records in
13 May and this first interview on 9th September.
14 I think it is worth, in our submission, remembering
15 that Detective Chief Superintendent McBurney was not
16 just dealing with one investigation; in other words, the
17 investigation into the murder of Robert Hamill, and the
18 tip-off allegation and the neglect allegation.
19 As you will have seen set out in some detail in the
20 submissions by the PSNI, he was also involved, during
21 this intervening period, in five other major murder
22 investigations, including, of course, one that was
23 touched upon yesterday, the murder of two RUC officers
24 in Lurgan in July.
25 So the reason I mention that, sir, is that it is
1
1 very easy, human nature being as it is, to simply focus
2 on this Inquiry, because that's what we are dealing with
3 day and daily, and to forget the reality of life back in
4 1997 for Mr McBurney, that he had a multitude of other
5 very serious crimes that he was investigating
6 THE CHAIRMAN: Can you remind us of what McBurney said in
7 his interview about pressure of other work?
8 MR ADAIR: I will shortly whenever my junior ascertains it,
9 sir. I will come back to that in due course.
10 Undoubtedly, he was involved in a substantial
11 number of other major investigations and, as I say, at
12 the risk of repeating myself, it is very easy to forget
13 that when we are within the closed confines of this
14 Inquiry and to wonder, "Why didn't he do this and why
15 didn't he do that?"
16 In relation to the strategy that was employed in
17 that interview criticism has been made of the fact that
18 essentially he asked Atkinson to produce his telephone
19 records, rather than put the records that he already had
20 received from the telephone company.
21 I have dealt with that to some extent, sir, in
22 relation to the evidence we have heard about the
23 telephone companies and their reluctance to let that
24 information be used other than for intelligence
25 purposes. I think I am right in saying that has been
2
1 touched upon by a number of witnesses during the course
2 of this Inquiry.
3 I think it is also right to say that he could have,
4 under the terms of the legislation, obtained that
5 evidence in hard form, but it seems to have been the
6 practice that what was done was "Use the information to
7 pursue your enquiries, but don't put the intelligence to
8 the suspect". That's what the protocol said. "This is
9 confidential information. Don't put this to a suspect."
10 What was being done --
11 THE CHAIRMAN: Whose protocol is this?
12 MR ADAIR: This is the PSNI protocol in relation to the use
13 of this intelligence information. Of course, in those
14 days, sir, there was very good reason for that, because
15 of the well-founded fears that service providers had for
16 their witnesses coming to court or of paramilitaries
17 becoming aware that they were giving the police this
18 information.
19 So what was done by Mr McBurney was an effort to
20 obtain evidence that he could produce in court, because
21 once Atkinson, as he was asked to, produced his
22 telephone records, that was capable of being made
23 an exhibit and produced in evidence in court.
24 So, in our submission, sir, this suggestion that, at
25 one stage, it was suggested this, in fact, it was
3
1 a tip-off by Mr McBurney to Atkinson does not have any
2 foundation whatever. This was a strategy employed by
3 Mr McBurney in accordance with the protocol and practice
4 that prevailed in 1997
5 THE CHAIRMAN: Again, Mr Adair, more work perhaps for
6 Mr O'Hare. It would be helpful if we can be told at
7 some stage what McBurney said about this in his
8 interview.
9 MR ADAIR: He said -- my recollection is he said he wanted
10 hard evidence in the form -- again, I hope I am not
11 wrongful in that, but my recollection is that that's
12 what he said, but I will have that checked as well, sir.
13 THE CHAIRMAN: Is it said there was a danger to providers'
14 own personnel, even if disclosure was made under a court
15 order?
16 MR ADAIR: Well, there was, sir. I mean, the reality is
17 there was. I don't want to start giving evidence, but
18 anybody who practised in this jurisdiction in those
19 years would have been well aware, not just of the
20 reluctance of witnesses such as Catholics and
21 Protestants in Portadown to come forward to give
22 evidence, but of anybody to come forward to be seen to
23 be giving evidence which potentially would convict
24 a paramilitary of a crime.
25 THE CHAIRMAN: Was any distinction being made between that
4
1 which was done voluntarily and that which was being done
2 under an order of the court?
3 MR ADAIR: I am not sure whether the paramilitaries were
4 subtle enough to recognise the difference, to be
5 absolutely frank, sir. I think their venom against
6 people who gave evidence was not simply restricted -- or
7 didn't temper by the fact that they were aware that they
8 were under a court order to give it, to be absolutely
9 honest with you, sir. I mean, I think they just caused
10 such fear in any witness who was giving evidence, and
11 the fact that they are under a court order, that
12 subtlety, I don't think, sir, was really something that
13 was present in their minds.
14 REV. BARONESS KATHLEEN RICHARDSON: I thought we were told
15 at one point that there was a way of getting round it by
16 inviting people from over the water to give the evidence
17 for them. Am I correct?
18 MR ADAIR: Yes. I think very often people were brought in
19 from across the water to give that evidence. Again, if
20 I might say so, extremely reluctantly did they come.
21 They came. There is absolutely no doubt about that.
22 They came, but it was extremely reluctantly.
23 What it boils down to is, if it could be done any
24 other way, such as the strategy engaged by McBurney,
25 then that was much preferable. I am not saying, sir,
5
1 that it was impossible or that it didn't happen, but if
2 there was a better, safer, more preferable way of doing
3 it, it was exactly the way that Mr McBurney did it
4 THE CHAIRMAN: Can you help me about the practice of the
5 courts in Ireland? In England, an order, if there are
6 proper grounds for it, could be made and the case would
7 be listed before a circuit judge's list at the beginning
8 of the day; in other words, within 24 hours of the
9 decision we will apply, the order could be had. Was
10 there that same urgency or speed in this country -- in
11 the province, rather?
12 MR ADAIR: I don't think so. I have to say, in those days,
13 sir, I was not actually engaged in much prosecution work
14 myself, to be frank about it. So I am not actually
15 aware of the exact mechanisms.
16 THE CHAIRMAN: It may be Mr Wolfe will be able to help us
17 about that.
18 MR ADAIR: It may be. It certainly was obtainable. If one
19 decided to go down the route of getting a court order,
20 an application could be made, and whether it was within
21 a day or two, or whether it was within a week or two or
22 a month --
23 THE CHAIRMAN: In England, it was a priority. You said you
24 wanted to make the application the previous night and
25 you made it the next day, or, if it was in the morning
6
1 that you made the decision, you would still get your
2 order within the day if you made the grounds out for it.
3 MR ADAIR: Well, sir, it may well be that the same applied
4 here. I frankly can't answer the question.
5 THE CHAIRMAN: As I said, Mr Wolfe may be able to help us
6 about that.
7 REV. BARONESS KATHLEEN RICHARDSON: The original records did
8 not take long to find, did they, once P39 asked for
9 them?
10 MR ADAIR: No. What we say, sir, is that that was one route
11 that could have been followed. Whether it would have
12 been rapidly obtained or whether it would have taken
13 a week, a day or a month, I can't say, but it was one
14 route, but our submission is that the preferable route,
15 and the practice was, in accordance with the protocol,
16 to go down the route that Mr McBurney, in fact, went
17 down.
18 Now, another criticism ancillary to this is arising
19 out of that, that, once again, the records were not put
20 to Atkinson during the course of the September
21 interview. I simply repeat what I said about the
22 potential of interviewing him back in May, that the
23 probability, the very strong probability, is that
24 Atkinson would simply have said, "Well, I know nothing
25 about that. I will make enquiries and I will come back
7
1 and tell you."
2 Again, we say, to suggest that Mr Atkinson would
3 have simply put his hands up and said, "Oh, I see you
4 have a record of a call that was made from my house to
5 the Hanvey house. I hear that you have a witness who
6 alleges that that was a tip-off", is anyone seriously
7 suggesting Atkinson would have put up his hand and said,
8 "That was me. I tipped Hanvey off about a murder, about
9 destroying and getting rid of his clothes in a murder,
10 and I want to tell you all about it"?
11 Sir, in our submission that is fanciful. One only
12 has to look and remember Mr Atkinson giving his evidence
13 to this Inquiry in the face of what is now overwhelming
14 evidence that he was involved in this conspiracy, the
15 overwhelming evidence, we all know, being Andrea McKee's
16 plea of guilty, Michael McKee spending six months in
17 prison and so on, and all the other evidence that has
18 been collected, but he still sat brazenly in front of
19 this Inquiry and said, "That just didn't happen".
20 Now, are we to pre-suppose, back then, in the face
21 of the limited evidence the police had, he would simply
22 have put his hands up? We say that's a fanciful
23 proposition and simply would not have happened.
24 THE CHAIRMAN: What do you say about the question of
25 whether -- a chance, when Atkinson was asked about the
8
1 telephone call, the effect of that would be to destroy
2 Tracey Clarke's cover?
3 MR ADAIR: We submit the probability is that was very
4 much to the forefront of Mr McBurney's mind, both in May
5 and in September. Now, he didn't say that during the
6 course -- the reason I say "the probability is", is
7 because, undoubtedly, Mr McBurney did not make that
8 proposition during the course of his interviews at any
9 time.
10 It is hard to imagine, knowing as we do that he was
11 one of the best senior investigating detectives in this
12 province, that it was not something, whether consciously
13 or unconsciously, that was not somewhere in his mind,
14 that by interviewing Mr Atkinson, whether in May or in
15 September, he was potentially going to expose the
16 critical witness in the murder case. I think that's
17 a very real -- I think it is a probability. I can put
18 it no further than that, sir, because he didn't say it
19 himself.
20 It may be so obvious that it is not something he
21 thought necessary to say. I just don't know. It was
22 always going to be difficult keeping Tracey Clarke on
23 board. That seems to be the effect of the evidence and
24 it seems to accord with common sense, knowing what we do
25 about Portadown back then. So it was always going to be
9
1 a delicate balancing act to get her right through the
2 procedure and into a witness box in court. Anything
3 that might jeopardise that, we submit would be something
4 that Mr McBurney would be keen not to do
5 THE CHAIRMAN: Is it right to say that to keep her as
6 a witness and safeguard her for that purpose was
7 impossible without Tracey Clarke's cooperation?
8 MR ADAIR: To keep Tracey Clarke?
9 THE CHAIRMAN: As a witness in safety, was impossible
10 without her cooperation?
11 MR ADAIR: Absolutely, sir. We know the efforts that were
12 made by Mr McBurney and P39 to relocate her, to get her
13 alternative employment, to get her out of Portadown away
14 from potential influences, but, of course, perhaps
15 understandably, being a 17-year-old girl, she didn't
16 want to move away, obviously, from Portadown, for
17 whatever reason.
18 This was not an unusual scenario for police to have
19 in relation to the prosecution of either paramilitaries
20 or people with connections with paramilitaries
21 throughout the period euphemistically called the
22 troubles in this province. Very often, there were
23 witness statements made by various people which were
24 either critical to the prosecution or important to the
25 prosecution. The police were walking on tenterhooks for
10
1 the months between charging and the court appearance as
2 to whether those witnesses would ultimately give
3 evidence.
4 Sometimes they did, but very often, as we know, they
5 didn't. I think we had another example yesterday when
6 Sir Ronnie Flanagan was being questioned about the
7 Colin Duffy situation, where apparently -- I don't know
8 anything about the case -- there had been a witness in
9 that case as well who ultimately didn't give evidence.
10 There is nothing unusual about this. The hope was
11 that they would give evidence, but the realisation was
12 that that may not come to fruition. That was just
13 a fact of life.
14 The point about that, sir, is that anything that
15 could be done to protect, in the sense of protect them
16 both physically and potentially protect their identity,
17 would be done, because already there was a tightrope.
18 Falling off that tightrope was all too easy,
19 unfortunately, in so many cases.
20 Now, the third stage, sir, that Mr McGrory referred
21 to was the making of the false alibi statement by
22 Andrea McKee.
23 It was suggested by Mr McGrory that the mistake here
24 was that she should have been arrested immediately after
25 making the statement and she would have broken. Again,
11
1 it is suggested that the best investigative strategy
2 would have been to arrest her and break her, I think
3 were the words that were used.
4 Again, sir, we respectfully submit, if one looks at
5 the reality of the situation as to what probably would
6 have happened if she had been confronted, take the first
7 scenario. If, on going to take the statement,
8 Detective Inspector Irwin, before she made the
9 statement, had confronted her with the fact that she had
10 come down with Tracey Clarke, so, therefore, he knew
11 what she was about to put in the statement was untrue
12 and said to her, "Now, be very careful", and, say,
13 cautioned her, well, what is the probability as to what
14 she would have done?
15 She probably, according to her evidence, would not
16 have made the statement. It is possible she might have
17 gone on to make it, but it is probable, if she had been
18 confronted in this way, that she would not have made the
19 statement.
20 What would the consequence of that have been? Well,
21 the consequence would be, as far as attempting to get
22 Mr Atkinson, absolutely nothing. That would have got
23 you absolutely nowhere unless she had gone a stage
24 further and said, "Not only am I not going to make this
25 false alibi statement, but I want to now give evidence
12
1 and make a witness statement concerning what I know
2 about a conspiracy between Robert Atkinson and my
3 husband, Michael McKee".
4 I rhetorically ask: what was the likelihood of that
5 happening? Our respectful submission is that it is just
6 about zero. At that stage, she was still living with
7 her husband under the influence of her husband, as we
8 know, living in Portadown. Is anyone, we rhetorically
9 ask, seriously suggesting that she was there and then
10 going to say, "I now want to make a witness statement
11 and potentially put my husband and others in prison"?
12 We say again that that was fanciful.
13 She gave evidence about this on 11th February of
14 2009. If you could call this up, please, first of all,
15 at page 43. At line 21 -- again, there seems to be
16 a mix-up in my -- this is a very short quote which
17 I will just tell you, sir, and then I will move on to
18 another passage. She was asked:
19 "Question: In April 1997 were you living in
20 Portadown?
21 "Answer: I was living in Craigavon.
22 "Question: Who with?
23 "Answer. With my husband, Michael.
24 "Question: What was your relationship with him at
25 the time? How good was it?
13
1 "Answer: It was okay."
2 I see actually at the top of the page, it is at
3 page 44 on the screen in front of you, sir, the very top
4 of the screen
5 THE CHAIRMAN: Yes.
6 MR ADAIR: Then if you go to page 67, line 22:
7 "Question: Doing the best you can with what might
8 be a hypothetical question, can you tell us how much it
9 would have taken for to you change your course?"
10 This is relating to the period when Irwin is taking
11 the statement:
12 "Answer: At that moment in time, I knew right from
13 wrong, and I'm responsible for my own actions, and,
14 foolishly, I shouldn't have gone in there and made that
15 statement. He was there to do his job and take
16 a statement, as he had been asked to. As I say, I can't
17 blame anybody but myself. I was asked to do that by
18 Robbie. I wasn't made to, and he took a statement as he
19 was asked to, from me, which was untruthful.
20 "Question: Were you dead set on doing this?
21 "Answer: no.
22 "Question: So if he had said, 'What are you doing
23 Andrea?'
24 "Answer: I would have got up and gone."
25 That's why I say the probability is that if she had
14
1 been confronted with it there and then, according to her
2 evidence, and I see no reason to doubt it, the
3 probability is she wouldn't have made the false
4 statement:
5 "Question: Would you have been prepared, can you
6 tell us, to uncover the cover-up, or would you have just
7 gone out of the room?
8 "Answer: I can't answer that."
9 She says she can't answer that, but in our
10 submission the probability is, having regard to the fact
11 she is still living with her husband, that she wouldn't.
12 If you go to page 94, which I assume then is 95 --
13 THE CHAIRMAN: Just pausing there, she could not have
14 exposed what had happened without incriminating her
15 husband, could she?
16 MR ADAIR: No, no.
17 At page 95, starting at line 25, she is asked:
18 "And the statement was in essence in support, first
19 of all, of what your husband said and to give an alibi
20 in a sense to Atkinson?
21 "Answer: That's right, yes.
22 "Question: While you were with your husband, can we
23 assume you wouldn't have changed that; you wouldn't have
24 phoned up the police and said, 'By the way, what I said
25 is untrue and my husband has also given a false
15
1 statement'; it is only when you had separated and
2 started a new life that you thought better of it?
3 "Answer: Yes."
4 So that's why we say that the probability -- that is
5 probably putting it modestly -- is that she would not
6 have implicated her husband and Atkinson in any
7 conspiracy at that stage.
8 So, therefore, at this stage, to have confronted her
9 would have got absolutely nowhere in the pursuit of
10 Mr Atkinson, and, of course, Mr McBurney, being the
11 astute detective that he was, would have realised that
12 immediately.
13 THE CHAIRMAN: Just before you move on from that point, we
14 are asked to criticise McBurney's decisions about the
15 investigation of the tipping-off allegation. What do
16 you say is the proper test of that? Is it that we think
17 there was another way he could have tackled it which
18 would have been better, or is it to say, well, this was
19 one of a number of courses and it was a reasonable
20 course to have taken?
21 MR ADAIR: The latter.
22 THE CHAIRMAN: The latter. Thank you.
23 MR ADAIR: Now, it is at this stage, sir, that the
24 allegation is made that Mr McBurney engages in what must
25 be the most Machiavellian strategy, if what Mr McGrory
16
1 is suggesting is right, because what is suggested now at
2 this stage is that, when Mr McBurney discusses with
3 Mr Irwin his essential delight at this development that
4 Andrea McKee has made this false statement, and
5 discusses with Irwin that this is the potential at some
6 stage for the breakthrough into getting Mr Atkinson,
7 Mr McGrory is forced to say, "Well, what is going on
8 here is that Mr McBurney, in fact, is not intent in
9 pursuing Atkinson, but, in fact, is engaging in the
10 Machiavellian approach of pretending to
11 Detective Inspector Irwin that he is intent on pursuing
12 Atkinson and that any conversation he has with Irwin
13 expressing that view is simply a subterfuge."
14 I mean, at this stage, sir, even on a rainy day
15 I put the novel down, because it is not suggested that
16 Mr Irwin is lying when he recounts the conversations
17 that he had with Mr McBurney about his approach and his
18 attitude and his desire to get Atkinson, what has to be
19 suggested now, at this stage, is that this was McBurney
20 really fooling Detective Inspector Irwin about his
21 intentions and about his attitude to this.
22 We can see what Mr Irwin said about this on
23 9th September at page 98 -- it is at your page 99,
24 line 3. This is Mr Irwin being asked about his
25 conversation with Detective Chief
17
1 Superintendent McBurney:
2 "Question: -- whether she should be confronted with
3 this or whether you should simply take a witness
4 statement from her?
5 "Answer: That's correct, sir.
6 "Question: So it was obviously something that was
7 tasking the mind of Mr McBurney at that stage?
8 "Answer: It certainly was, sir, yes.
9 "Question: He directed that you should not confront
10 her, but you should, in fact, just take the witness
11 statement?
12 "Answer: That's correct.
13 "The Chairman: What, draw her attention to the
14 declaration?
15 "Mr Adair: Yes.
16 "The Chairman: If she backed out at that, leave it;
17 if she didn't, take a statement?
18 "Mr Adair: That's right, sir."
19 I think that should probably read Mr Irwin answering
20 those questions, rather than me:
21 "Question: Now, I don't think you have said in so
22 many words, but is this proposition a reasonable one as
23 to what Mr McBurney was doing? Did he see this, in
24 other words, Andrea McKee making a false alibi
25 statement, as the potential way to break into the
18
1 conspiracy?
2 "Answer: Sir, when Michael McKee was interviewed in
3 Lurgan police station and I had a brief word with
4 Mr McBurney after that, he was delighted that the
5 Atkinsons had introduced other people into the
6 conspiracy, because he saw here we have a one-minute
7 phone call between one house and another house, and what
8 he had to prove -- here we were, two families, both of
9 interest, not to tell the truth. What he had to prove
10 was not only who had made the phone call, but what was
11 actually said on that phone call, and for any
12 investigator that is a massive task in relation to
13 a phone call.
14 "You can prove a phone contact, but who made it and
15 what was said on it -- and he saw the introduction of
16 people outside those family units as a real bonus to the
17 investigation. He believed at that stage this was
18 a bonus and an opportunity.
19 "Question: Now, we all know, as lawyers, the
20 dreaded alibi witnesses --
21 "Answer: Yes.
22 "Question: -- and what they are usually like. Did
23 he see, just to put it in a nutshell, the making of
24 a witness statement by Andrea McKee, this false alibi
25 statement, as a potential breakthrough eventually --
19
1 "Answer: He did indeed, sir.
2 "Question: -- into Atkinson?
3 "Answer: That's correct, sir.
4 "Question: Have you any doubt whatsoever that his
5 strategy at that stage was to get this false alibi
6 statement, and, when the time was right, break the alibi
7 statement?
8 "Answer: I have no doubt whatsoever, sir. What
9 I would say is, after I took the witness statement off
10 Andrea McKee and we spoke about it, he certainly gave me
11 his view, at that stage, that now the timing wasn't
12 right to move on, because what you would simply get was
13 Andrea McKee and a statement after caution from her
14 potentially, which then could not be used against
15 Robbie Atkinson.
16 "Question: In relation to the McKees, Michael McKee
17 and Andrea McKee --
18 "Answer: Yes.
19 "Question: -- was there any discussion between you
20 and Mr McBurney as to whether he thought he might be
21 able to break Andrea McKee eventually?
22 "Answer: Because of probably her relationship, that
23 she'd come to the police at the start, and underneath it
24 all Mr McBurney was of the view that she had been used
25 and forced into this situation and that she was the weak
20
1 link in the whole conspiracy.
2 "Question: What about your knowledge of whether the
3 marriage was a solid one or otherwise between Michael
4 and Andrea?
5 "Answer: Yes, Mr McBurney had certain views on
6 this as well. He believed that it wouldn't last, so he
7 did, sir.
8 "Question: Again, I think I have used this
9 expression before. Was his strategy at that stage then
10 to get this statement taken and wait in the long grass?"
11 I think the answer is:
12 "Answer: That's right, sir."
13 I am missing that page in mine.
14 So that's the nature of the discussion both pre and
15 after the taking of the statement by Mr Irwin and
16 Mr McBurney. It is not suggested that conversation did
17 not take place, but what is suggested, as I say, is that
18 this was some kind of subterfuge, Machiavellian
19 subterfuge, on the part of Mr McBurney, to fool Mr Irwin
20 as to his real intentions.
21 So what we respectfully submit, sir, is that, by
22 adopting the courses that had been suggested, either in
23 May or at any stage up to the point we are dealing with
24 in October when Andrea McKee made her statement, would
25 have got absolutely nowhere in attempting to prosecute
21
1 Mr Atkinson.
2 Now, the next stage that is criticised is the stage
3 when what we are calling the neglect file is lodged with
4 the DPP. The allegation is that, because of the way it
5 is worded, in particular, because of the fact that
6 specific attention is not drawn to the DPP's attention
7 concerning Andrea McKee's previous involvement with
8 Tracey Clarke, that there is something sinister about
9 that and that would tend to confirm that Mr McBurney did
10 not have this long-term strategy.
11 I deal briefly with this, sir. When considering
12 this aspect of the case, it is important, in our
13 submission, to look not only at the neglect file, but at
14 the murder file, which, of course, had gone in
15 previously, and to see what Mr McBurney and Mr Irwin had
16 indicated to the DPP concerning Tracey Clarke.
17 Now, the murder file, as we know, was submitted in
18 August of 1997. If I could have page [06134], please.
19 If you would highlight the bottom paragraph, please.
20 Now you will recall, sir, that when the murder file was
21 sent into the DPP, the statements of Tracey Clarke and
22 Jameson were enclosed separately in a separate file
23 because of the sensitivity. This is what is said:
24 "I am in no doubt that the evidence outlined by
25 Witness A", which is, of course, Tracey Clarke, "and
22
1 Witness B is truthful and correct. In addition,
2 Colin Prunty implicates Wayne Lunt."
3 Now, if I stop there for a second, and if we go then
4 to page [06135], the previous page, sir -- as we know,
5 the murder file was prepared by Detective
6 Inspector Irwin. It is he that is making the assertion
7 that the evidence of Tracey Clarke is truthful.
8 Now, before I come on to this document, it is worth
9 remembering he is not prevaricating and saying, "The
10 part of her statement concerning who was involved in the
11 attack on Robert Hamill is truthful, but the part about
12 the tip-off is a bit -- we are a bit less sure of", what
13 they are saying is, "This is a truthful statement".
14 This is then what Detective Chief
15 Superintendent McBurney says:
16 "Detective Inspector Irwin's comprehensive report
17 defines the circumstances and the difficulties of this
18 investigation.
19 "The non-cooperation of some witnesses and the
20 Hamill family's solicitor has resulted in all possible
21 evidence not being made available.
22 "The evidence of Witnesses A and B is crucial,
23 however. I refer you to the separate confidential
24 report submitted. I strongly support the recommendation
25 that an early consultation be held with these
23
1 witnesses."
2 So Detective Inspector Irwin's comments are being
3 adopted and approved by Detective Chief
4 Superintendent McBurney.
5 Now, at that stage, what is clear beyond
6 peradventure is that the DPP are being informed that
7 Tracey Clarke is a truthful witness. There is no
8 prevarication about the tip-off allegation.
9 Then if we go to the neglect file at page [09082] --
10 THE CHAIRMAN: Which document is this? Is this Irwin's
11 statement or McBurney's interview?
12 MR ADAIR: This is the neglect file put in by Mr McBurney.
13 THE CHAIRMAN: Thank you. Sorry.
14 MR ADAIR: If you go to [09080], first of all, please, at
15 paragraph 125, you will see, just to put this in
16 context, that what this is referring to is -- the
17 lines just above that at paragraph 124 relating to:
18 "He also told me that Robbie Atkinson was ringing
19 him every day to keep him up-to-date with the police
20 investigation."
21 This was relating, therefore, to the Tracey Clarke
22 tip-off allegation. This has not been mentioned very
23 much during the course of dealing with this report:
24 "This aspect of Witness A's statement cannot be
25 taken lightly and in many respects has a ring of truth
24
1 to it."
2 Now, we have dealt --and a lot of the concentration
3 has been on the word "sceptical", which I will come to
4 in a moment, but, in fact, prior to using that,
5 Detective Chief Superintendent McBurney has told the
6 reader that it can't be taken lightly and in many
7 respects has a ring of truth to it.
8 So, first of all, he has told the DPP in terms in
9 the murder file that Tracey Clarke is a truthful
10 witness, a witness of truth. Then in the neglect file
11 he says that her allegations can't be taken lightly and
12 in many respects has a ring of truth to it.
13 Then at page [09082], the reference, if you
14 highlight paragraph 135, just at the bottom of that
15 paragraph he indicates to the reader:
16 "Having found no evidence other than the telephone
17 billing to substantiate the allegation of Witness A, one
18 can remain sceptical, but there is absolutely no other
19 evidence to substantiate the allegation by Witness A."
20 What we say, sir, is that Detective Inspector Irwin
21 and Mr McBurney have told the DPP, first of all, that
22 Tracey Clarke is a truthful witness. They then in the
23 neglect file say that what she says about the
24 tipping-off has the ring of truth about it, and they
25 indicate scepticism about Atkinson's explanation for how
25
1 this all arose.
2 To suggest, in our submission, that this was
3 misleading is unfounded.
4 The question arises: should he also have included in
5 the neglect file what he, in fact, knew about
6 Andrea McKee's previous involvement with Tracey Clarke?
7 Perhaps he should have, but is one, I rhetorically ask,
8 going to say, because he didn't, that therefore there is
9 something sinister in his motivation?
10 He certainly did not say anywhere in either of these
11 reports, for example, that he believed Michael McKee or
12 that he believed Atkinson. He did quite the opposite.
13 He expressed his views that the probability was that the
14 truth lay with Tracey Clarke.
15 Of course, the issue arises -- and obviously
16 Sir John will know more about this than I do -- as to
17 what exactly has to be encompassed in a report to the
18 DPP when considering a file that is sent to them for
19 them to consider whether or not to prosecute. How much
20 detail does one go into?
21 I also mention, sir, of course, that Mr McBurney was
22 obviously at great pains all along to protect
23 Andrea McKee. I think I am right in saying that she is
24 not mentioned at all in the murder file. I think I am
25 right in saying that there was evidence that McBurney,
26
1 in fact, told Mr Irwin, "Look, keep Andrea McKee out of
2 this. There is no need to mention her name in the
3 murder file at all".
4 One might say, "Look, why wasn't it in the murder
5 file that the reason Tracey Clarke made a witness
6 statement was because Andrea McKee came along and told
7 us this and we met her up at the graveyard and took her
8 down and she was with Tracey Clarke?"
9 I think I am right in saying there is no mention of
10 that in the murder file either. So there is obviously
11 some concern to protect Andrea McKee. It may be that
12 was continuing along when the neglect file was submitted
13 THE CHAIRMAN: Is my recollection correct that McBurney said
14 in his interview words to this effect: he didn't think
15 Andrea McKee carried the case any further forward?
16 MR ADAIR: That's right.
17 THE CHAIRMAN: Therefore, that was not anything the Director
18 would need to know about. He wanted to know what the
19 evidence was. Is that a fair summary?
20 MR ADAIR: I think so, sir. It comes back to the point, as
21 I say, what has to be included in these reports? Of
22 course, a policeman's belief whether a person is
23 truthful or untruthful in many respects with the DPP is
24 neither here nor there. They decide whether to
25 prosecute on the evidence that's presented to them.
27
1 I suspect it is useful to the DPP to know whether the
2 police have very good reason to doubt the truthfulness
3 or otherwise of a witness, but the question does arise
4 as to how much is supposed to be included in these
5 reports to the DPP?
6 To suggest that it is misleading, in our submission,
7 is unfounded. The best that might be said, or worst
8 that might be said, is that it might have been
9 preferable if the knowledge that the police had about
10 Andrea McKee's previous involvement was included in the
11 report. I don't think I could gainsay that. That might
12 have been preferable, but to say that, therefore, there
13 is something sinister in relation to Mr McBurney, in our
14 submission is unfounded.
15 Now, the next stage that Mr McGrory says that best
16 investigative strategy was not followed is in October of
17 1999. This is the point, sir, you will recall, when the
18 information came to hand to Detective Inspector Irwin
19 that Andrea McKee and her husband had separated.
20 Sir, I think it is worthwhile -- I mention just for
21 completeness at this stage that, of course, the
22 allegation is also made against Mr McBurney that there
23 is no record anywhere of what his strategy was. In
24 fact, the converse is true. This memo demonstrates in
25 writing what his strategy was and what had been
28
1 indicated to Mr Irwin. Quite the converse to what is
2 being suggested.
3 The memo is at page [02395]. It says:
4 "Michael and Andrea McKee who resided at [blank]
5 Craigavon have separated. Michael McKee left Andrea for
6 another woman and has moved to [blank]. Andrea has
7 returned to Wales. Detective Chief Superintendent
8 McBurney informed of this development and enquiries
9 being made to confirm this and their present location.
10 Further details submitted in due course and at
11 an appropriate time regarding coroner's inquest", and
12 this is another point that is criticised, that he should
13 have moved there and then.
14 Clearly, what was in their minds was to move once
15 the situation concerning the coroner's inquest, which
16 was being objected, to, of course, by the Hamill family,
17 was resolved. So:
18 "... at an appropriate time regarding coroner's
19 inquest both to be spoken to again", and here is the
20 important point, "reference their previous accounts.
21 This will be updated by message sheet."
22 So here in black and white is the strategy that had
23 been engaged and adopted by Mr McBurney and communicated
24 to Detective Inspector Irwin.
25 REV. BARONESS KATHLEEN RICHARDSON: It says the other way
29
1 round, doesn't it? This is Irwin speaking to McBurney.
2 MR ADAIR: Yes. We say this memo demonstrates that there
3 was a strategy, first of all, that Mr Irwin was aware
4 of, secondly, that he was in communication with
5 Mr McBurney about, and, thirdly, that it referred to
6 tackling Andrea McKee reference her previous account,
7 not just talking to her again about some nebulous
8 matter, but he wanted to actually put to her --
9 REV. BARONESS KATHLEEN RICHARDSON: The initiative seems to
10 be from Irwin at this point.
11 MR ADAIR: No. This simply is a memo indicating that Irwin
12 has become aware of the fact that the McKees have
13 separated. He has communicated this to Detective Chief
14 Superintendent McBurney, and that, at a later stage,
15 reference coroner's inquest, they are to be spoken to
16 again reference their previous accounts.
17 What we're saying is this copper-fastens the fact
18 that McBurney had adopted this strategy, that he
19 communicated this strategy to Irwin, and here is Irwin
20 actually recording on the memo sheet information
21 relevant to that strategy.
22 THE CHAIRMAN: You say this memo has to be read in the
23 context of what had passed earlier between McBurney and
24 Irwin?
25 MR ADAIR: It is part of the continuing process of
30
1 communication of his strategy between McBurney and Irwin
2 and absolutely confirms his views that he had expressed
3 to Irwin at the time Andrea McKee made the false
4 statement. This is potentially the breakthrough, and
5 here it is recorded in black and white.
6 Irwin's evidence about this is on 9th September. It
7 is my page 131. Starting at line 14. That is 132 on
8 the screen:
9 "Question: At this point, after Andrea McKee has
10 made the statement, did Mr McBurney then explain he had
11 a strategy as to what he would do, having put you in the
12 uncomfortable position of taking the statement?
13 "Answer: When I came out of that interview, sir,
14 I believe I met Mr McBurney a few days later and
15 explained to him what had occurred in taking the
16 statement and I said, 'You need to get a team with
17 another investigating officer and investigate that area
18 of it'. He said, 'Leave it with me', and he came back,
19 because, at that stage, the Hanveys hadn't been
20 interviewed, sir, and he came back to me some time
21 later."
22 At page 133, line 1:
23 "He says, 'Now is not the right time to jump. What
24 we would get at the minute is we would get Andrea McKee,
25 potentially get Andrea McKee, but we wouldn't get
31
1 Atkinson', because Andrea McKee at that stage was
2 closely linked to Michael and closely linked to the
3 Atkinson as and his belief was at that she would not
4 give evidence against Atkinson. That was his belief at
5 that time, sir.
6 "Question: Did he say at that time that he had
7 a hunch that this union between the McKees wouldn't
8 last?
9 "Answer: What he said was that he was delighted
10 that -- not delighted -- he was pleased that two
11 individuals that weren't attached to the family units
12 had become involved in the investigation and he saw that
13 as the opportunity to get to the truth.
14 "As I said earlier, sir, we are talking about a
15 one-minute phone call. We are talking about not only
16 what was said or who made the phone calls, but what was
17 actually said in that phone call. That was the only way
18 he was going to convict Mr Atkinson, because Mr Atkinson
19 had said he had went home, had gone to bed, and had no
20 dealings -- and wasn't aware of the phone call. The
21 only way to break that was to get direct evidence from
22 somebody involved in that alibi issue."
23 "Question: See, the problem with all of this is,
24 I have suggested to you, Inspector Irwin, it is the best
25 part of another three years before anything does happen.
32
1 "Answer: That's correct, sir, yes.
2 "Question: I am suggesting to you that it stretches
3 the imagination far too far that something as important
4 as this, in terms of an investigative strategy, would be
5 let sit for three years.
6 "Answer: But, sir, what is the point in jumping too
7 early and losing the opportunity?
8 "Question: Well, what if the opportunity never
9 comes.
10 "Answer: Yes. Put it this way, sir. Andrea McKee
11 was going to be arrested -- I am in no doubt about
12 that -- at some stage and be interviewed about it.
13 I know you don't want to accept that, sir, but if
14 you look at the message sheet that I also put in, in
15 '99, or whatever it was, that Andrea McKee and her
16 husband had separated, there is a message sheet in the
17 system and that Mr McBurney intends to interview these
18 witnesses again.
19 "Question: But what if they had not separated?
20 "Answer: Sir, they were going to be arrested then.
21 That's what I am saying.
22 "Question: How long did Mr McBurney say he was
23 going to wait for this separation before he would then
24 arrest her?
25 "Answer: The trial had went on sir, and then he was
33
1 very keen to get an inquest.
2 "As you are aware, the inquest process went on for
3 longer than we anticipated. You were objecting to the
4 inquest and Mr McBurney wanted an inquest for all the
5 information to come out."
6 Then if one goes down to line 21, page 135, he says:
7 "Answer: ... All I can say from my point of view is
8 that Mr McBurney, to me, was keeping it under review,
9 and I was briefing him regularly during the coroner's
10 inquest of how the process was going."
11 So, in our submission what was happening in
12 October 1999 confirms, first of all, that the strategy
13 was in place, confirms that McBurney and Irwin discussed
14 it, not just on one occasion, but, if Irwin is right, on
15 a number of occasions. They were awaiting the outcome
16 of the inquest before making their move towards
17 Andrea McKee.
18 In fact, as we now see, when the coroner informed
19 the parties there was not to be an inquest, they moved
20 within a number of days to re-interview -- their
21 intention to move was formulated within a number of days
22 and they, in fact, moved, as we know, on, I think it is
23 20th June.
24 THE CHAIRMAN: We shall have to consider why there was that
25 wait between October and the decision not to have the
34
1 inquest; in other words, why wait for there to be
2 an inquest?
3 MR ADAIR: That's something which, sir, I can't give you
4 an answer to, but it would appear that they certainly
5 decided that it would not be appropriate to re-interview
6 Andrea McKee before the inquest situation had been
7 resolved.
8 Would it have been appropriate at that stage,
9 an inquest in the offing, to have gone over and
10 re-interviewed Andrea McKee? I don't know. It may have
11 been. I am not absolutely sure tactically or
12 strategically why it was necessary to wait for the
13 inquest situation to be resolved, but that certainly
14 seems to have been their mindset, unless the memo sheet
15 is just made up
16 THE CHAIRMAN: What was the practice in Northern Ireland
17 about holding an inquest when there was an ongoing
18 investigation?
19 MR ADAIR: The inquest usually awaited the outcome of the
20 ongoing investigation. It was opened formally and then
21 adjourned until the outcome of the investigation.
22 THE CHAIRMAN: To avoid that, there could have been
23 a continuation of the investigation not disclosed to the
24 coroner. Now, what do you say about that, about the
25 desirability or otherwise of that?
35
1 MR ADAIR: Sorry, sir, there could have been an ongoing --
2 just keep the investigation going to delay the inquest?
3 THE CHAIRMAN: No, no, no. Without telling the coroner, so
4 that he would hold his inquest, but there would still be
5 an ongoing investigation about which he didn't know,
6 because he was not being told.
7 MR ADAIR: I am not aware of that ever happening, sir, to be
8 absolutely honest with it. Are you suggesting it is
9 kept hidden from the coroner?
10 THE CHAIRMAN: I am not --
11 MR ADAIR: I know you are not suggesting it, but are you
12 asking me --
13 THE CHAIRMAN: I am just asking you about the propriety of
14 that. If the practice would have been to adjourn the
15 inquest because there was an ongoing investigation, what
16 do you say about the proposition they could have
17 continued the investigation without telling the coroner
18 and, therefore, without delaying the inquest?
19 MR ADAIR: That would not be a proper course of action, sir.
20 THE CHAIRMAN: This is what I am asking you about.
21 MR ADAIR: My understanding is that the police liaise with
22 the coroner and say "Right. The investigation has now
23 reached its conclusion and it is an appropriate time
24 that you are allowed to hold an inquest". Mr McGrory
25 might be able to answer this better than I can, sir. My
36
1 experience of inquests is zero, actually.
2 THE CHAIRMAN: Maybe Mr Wolfe can tell us more about it.
3 MR ADAIR: I do know, just from practice, that the coroner
4 did not hold the inquest until the investigation was
5 over. It would be quite wrong for the police to
6 misinform the coroner that an investigation was
7 continuing.
8 THE CHAIRMAN: Or simply not tell him.
9 MR ADAIR: Or simply not tell him in some way to try to
10 delay the inquest. I don't think that has been
11 suggested in this case, sir.
12 MR UNDERWOOD: We are at the great advantage of having
13 Mr Daly here, who, amongst other things, acted for the
14 coroner. It may well be, if there is a question about
15 this, I can throw him to the lions.
16 MR WOLFE: I am grateful for that.
17 MR ADAIR: The fourth stage which Mr McGrory refers to is in
18 June 2000. Now, if we could have page [02416],
19 please --
20 THE CHAIRMAN: I think we will have a break at this stage
21 and come back at 11.15 am.
22 (11.05 am)
23 (A short break)
24 (11.15 am)
25 THE CHAIRMAN: Yes, Mr Adair?
37
1 MR ADAIR: Thank you, sir.
2 Can I clear up and answer, I hope, your question,
3 sir, as to whether Mr McBurney mentioned the other
4 enquiries that he was involved in? I don't have
5 a page number, but it is Mr McBurney's first Inquiry
6 interview at page 13. Sorry. It starts at page 12,
7 I am told. Sorry, sir. It is giving us page 12 on
8 our ...
9 THE CHAIRMAN: Never mind. Just tell us what he said.
10 MR ADAIR: He recounts the murder investigations that he was
11 involved in in that period and, in fact, in his second
12 Inquiry interview makes reference to the fact that one
13 of the murder enquiries relating to the murder of the
14 two policemen in Lurgan had to be suspended because of
15 lack of resources.
16 THE CHAIRMAN: Thank you.
17 MR ADAIR: Sir, I think I am right in saying -- I have not
18 re-read the entirety of the transcript again, but I
19 don't think he said, "The reason I did not interview
20 Mr Atkinson until September was because of ..."
21 I am simply stating, sir, that, factually, that's
22 what he was involved in at the time.
23 Secondly, there are two other matters I should clear
24 up before I continue. As I have told you, I have zero
25 experience of inquests, but having spoken to Mr Daly,
38
1 I am told, sir, that the coroner has a discretion to
2 hold an inquest, even if an investigation is continuing,
3 except where someone is charged with murder and that is
4 either pending or ongoing. So that's what I am told by
5 Mr Daly. I see him nodding in agreement, sir. That's
6 the legal position.
7 The third thing that I have been asked to clarify by
8 Mr McGrory is in relation -- and I am going back to the
9 Land Rover crew and their discussion with Forbes and
10 Bridgett. Mr McGrory had, during the course of his
11 submissions, said they, ie the Land Rover crew, knew
12 that they were trouble-makers, Stacey and Bridgett
13 were trouble-makers and that's what I was quoting,
14 Mr McGrory's reference to that. Mr McGrory now wants to
15 correct himself and me.
16 MR McGRORY: In the best traditions of confessing to
17 wrongdoing in the course of advocacy.
18 MR ADAIR: Apparently, it was P40 who gave the evidence he
19 knew they were trouble-makers. There is no direct
20 evidence that the others knew that they were
21 trouble-makers, but one can -- we would respectfully
22 say, if they are known to P40, they may have been known
23 to the others as trouble-makers. I just can't say.
24 THE CHAIRMAN: Thank you.
25 MR ADAIR: I am coming on -- I know I am perhaps taking
39
1 a little longer than anticipated, and I will try to be
2 as brief as I can in relation to these points while
3 doing justice to my clients.
4 The fourth stage I was referring to, and that
5 Mr McGrory referred to, was June of 2000.
6 Now, this starts off with the message sheet that
7 appears at [02416]. If you just highlight that, please,
8 it says:
9 "Confirmed formally ..."
10 It is dated, you will see, 2nd June 2000:
11 "Confirmed formally by Mr Leckey, HM coroner, that
12 he had reconsidered the situation regarding holding
13 an inquest into the death of Robert Hamill and that he
14 had now decided not to hold an inquest. He requested
15 that I now inform Witness A and Witness B of this
16 situation. Witness B informed by DC Honeyford.
17 Witness A now residing in ...", it gives her address,
18 "with Allister Hanvey and is believed to be pregnant.
19 Presently no contact with Witness A and her mother.
20 Attempts made to contact Witness A - no answer. Coroner
21 informed of this position."
22 The important part is:
23 "Updated Detective Chief Superintendent McBurney of
24 situation regarding coroner's formal decision and as
25 a result will not have the opportunity to speak again to
40
1 a number of individuals. Decision made to re-interview
2 Michael and Andrea McKee. Developments reported via
3 message sheet."
4 Then it goes on to say:
5 "Actually informed of this decision on 19th May 2000
6 by HM Coroner himself. No action was required until he
7 formalised his decision in writing."
8 So informally they appear to have been told on
9 19th May, but then the formal decision comes some time
10 later.
11 Now, what we say, sir, is again contrary to the
12 suggestion that there is no record anywhere which
13 confirms Mr McBurney's strategy, that this again is
14 confirmation of the strategy that had been employed by
15 Mr McBurney along with Inspector Irwin from the outset.
16 Now, the suggestion is made also in relation to the
17 events that occurred in June prior to McBurney and Irwin
18 going over to see Andrea McKee -- it was suggested
19 essentially, really, it was Sir Ronnie Flanagan who, for
20 one reason or another, pushed and pushed for this to
21 occur.
22 Now I know it is not suggested there was a proper
23 motivation for that, that his motivation was something
24 else. It was also suggested that Mr McBurney lied, and
25 that's the word that was used, when he told the Inquiry
41
1 interviewers that he had not spoken to the chief
2 constable prior to going over to speak to Andrea McKee.
3 Dealing with the latter point, first of all, it
4 seems highly probable that Mr McBurney did, in fact,
5 speak to Sir Ronnie Flanagan before going to interview
6 Andrea McKee, because we have heard from the chief
7 constable about that. Therefore, Mr McBurney was wrong
8 when he said he spoke to no-one before he went over to
9 speak to Andrea McKee.
10 We would respectfully submit what loses any
11 rationale is why that would be a lie as opposed to
12 something that he simply either forgot or did not
13 recall. What possible motivation could Mr McBurney have
14 had for saying, "I didn't speak to anyone before I went
15 over and spoke to Andrea McKee"? Unless one is going
16 into the realms of absolute fantasy land and some wild,
17 sinister motivation for this, what possible reason would
18 he have for lying about that?
19 In fact, wouldn't it have been very much in his
20 interests to say, "Oh, yes, I went to speak to
21 Sir Ronnie and told him about the window of opportunity.
22 He agreed with it and off I went". So to say it is
23 a lie is, in our submission, unfounded.
24 We know also that, whilst at one stage he said he
25 spoke to no-one before he went to speak to Andrea McKee,
42
1 virtually I think on the next page of his interview he
2 recounts to the interviewer that he had spoken to
3 ACC White before he went over to see Andrea McKee,
4 because ACC White had to arrange the resources, the
5 plane, the manpower and so on.
6 SIR JOHN EVANS: Mr Adair, wasn't the issue that McBurney
7 was being asked about whether or not he was under
8 instructions from the Director's office or from
9 whomever, and that was the point he was raising, that he
10 didn't feel the need to check out with any of those
11 before he continued his investigation? It is not
12 anything to do, in my view, with what he had to say
13 about advising senior police officers.
14 MR ADAIR: That's right. I think that's absolutely right.
15 The reason I am dealing with it is because it is
16 suggested that this is a lie. What possible motivation
17 for a lie about speaking to the chief constable is hard
18 to see, unless someone can suggest one to me. It is
19 just very difficult to see.
20 What is absolutely crystal clear, in our submission,
21 is that it was McBurney who went to see the chief
22 constable and told him about the window of opportunity.
23 It has been suggested that this was not McBurney doing
24 this off his own bat. Because of the words "I pushed
25 and pushed", used by the chief constable, and because of
43
1 the ambiguity in some of his answers, the suggestion is
2 being made that this was not McBurney's idea at all,
3 that this was the idea of the chief constable.
4 I think if one looks at the transcript yesterday of
5 what the chief constable actually said, it is clear
6 beyond peradventure that the sequence events was that
7 McBurney went to the chief constable and informed him of
8 the opportunity, and the chief constable -- whether the
9 words "pushed and pushed" or "encouraged" should be
10 used -- agreed with that strategy.
11 Some confusion has arisen because of the two
12 meetings that were had first of all with Mr xxxxx and,
13 secondly, with Mr Langdon. The first meeting, as we
14 know, was on 9th June, and I am not going to call up
15 these documents, sir, because I think it's fairly
16 self-evident. Having said that, I now contradict myself
17 and I will call up those documents. Page [39623],
18 please. This is a memo dated 12th June of a meeting
19 that Mr xxxxxx had with the chief constable on 9th June
20 concerning the tip-off allegation.
21 Now, I am not going to go through it and I will
22 stick to that, but there is no mention in that memo of
23 any new breakthrough in relation to Andrea McKee. That
24 was not discussed at that meeting.
25 You will also see, if you read the transcript of
44
1 what Sir Ronnie Flanagan said concerning where he got
2 this information for this meeting of 9th June, that he
3 thought it may have been Maynard McBurney. It could
4 have been the assistant chief constable, but there was
5 no degree of certainty where that information came from.
6 The likelihood is, whatever briefing the chief
7 constable received before the 9th June meeting, it was
8 not from Maynard McBurney, because Maynard McBurney
9 would have said to him at that meeting, "What's more,
10 there is a further line of enquiry that we are about to
11 follow".
12 So this meeting of 9th June makes no reference
13 whatsoever to the tip-off allegation.
14 The second memo from Mr Langdon is at page [39692].
15 This is a memo of 24th July of 2000 relating to
16 a meeting on 21st July of 2000 between the chief
17 constable and Mr Langdon. Where the confusion and
18 allegation concerning -- or the suggestion that it was
19 the chief constable who had directed this re-interview
20 of Andrea McKee comes from is from the following page,
21 [39693], paragraph 7. If you would highlight that
22 paragraph, please:
23 "I asked what had precipitated the new criminal
24 investigation. The chief constable said that when the
25 coroner had given 'the gem' to Robert Hamill's family
45
1 solicitors he himself had 'pushed and pushed' and the
2 re-interview of Mrs McKee followed directly from that.
3 ('the gem' is presumably the information that statements
4 identifying the murderers had been withdrawn)."
5 From that, understandably, at first blush,
6 Mr McGrory makes the suggestion that it was not
7 Mr McBurney's idea to re-interview Andrea McKee, but, in
8 fact, this came from the chief constable.
9 It is clear, in our submission, if one goes to
10 Mr Flanagan's evidence on 10th September at page 200,
11 Day 61, and at line 16 ...
12 THE CHAIRMAN: Page 201, 7:
13 "Answer: I was pushing and pushing ..."
14 MR ADAIR: Unfortunately, there is confusion about the
15 page numbers. I will tell you what he said, because
16 I can say it in a sentence, sir. What Sir Ronnie said
17 was that "the gem" had been given to him, but what drove
18 him to insist that this woman should be re-interviewed
19 was the late Maynard McBurney briefing to him of a new
20 development that gave, in his view, some hope.
21 He later went on to say:
22 "Answer: I certainly pushed and pushed, having been
23 given the briefing by the late Maynard McBurney."
24 That's page 200, line 22. Stop there.
25 He later goes on to say:
46
1 "So his briefing to me was before he travelled to
2 interview her."
3 That's Maynard McBurney's briefing. (Page 201,
4 line 12).
5 He later went on to say that McBurney appeared to be
6 absolutely delighted to have a new opportunity, because
7 he always suspected that the alibi was not a real alibi
8 THE CHAIRMAN: We don't have to look at that phrase "pushed
9 and pushed" uncritically. It may have been exuberance,
10 purple patch, call it what you will.
11 MR ADAIR: The only point I make about it is this, sir, that
12 it was McBurney's idea. The suggestion has been made
13 that because of that reference in the Langdon note that
14 it wasn't McBurney who initiated, who formulated, first
15 of all, the idea and initiated the idea and suggested
16 the idea, but, in fact, it was, and again, totally in
17 accordance with his strategy.
18 Now the -- as we know, just for completion, he went
19 over to Wales, got a witness statement from
20 Andrea McKee, and here is the breakthrough. I will deal
21 with this briefly in a minute or two.
22 The question arises then, now that we know, we say,
23 and can see in black and white the strategy developing
24 and developed, why is it suggested that, in fact, this
25 is not a strategy, but he had an ulterior motive?
47
1 Mr McGrory says that the suggestion is that he
2 stumbled. What I take that to mean is possibly that
3 initially Mr McBurney, because of the person he was, was
4 determined to pursue Atkinson, to root out a bad
5 policeman, but for some reason, at some stage, which it
6 is not absolutely clear it is suggested, but at some
7 stage, he stumbled.
8 Now, of course, to say that in the face of the
9 overwhelming evidence about the integrity and character
10 of Mr McBurney requires a reason. Why did he stumble?
11 Why did a man, who has potentially or probably set off
12 to root out a bad policeman, stumble? As I say, in the
13 face of the overwhelming evidence from both junior,
14 senior and the most senior police officer concerning the
15 character of Mr McBurney, some reason has to be grasped.
16 In our submission the reason that is suggested is
17 grasping at straws, because the reason that is suggested
18 now, at a very, very late stage, is that the chief
19 constable at some stage intervened and was the guiding
20 hand to Mr McBurney's non-pursuit of Constable Atkinson.
21 It is based on no evidence and it is interesting, we
22 respectfully say, to say how this argument developed.
23 The suggestion essentially is that because
24 Sir Ronnie Flanagan has potentially lied about, for
25 example, the meeting with Mr Langdon where it is alleged
48
1 he used the physical form of cradling a head when
2 describing a situation with Robert Hamill, because he
3 lied about that and potentially lied about one or other
4 matters in his evidence, therefore he is the guiding
5 hand in relation to Mr McBurney.
6 Well, that's a quantum leap which is unjustifiable,
7 in our respectful submission. To say that because
8 a person lies about a matter which may be in their own
9 interests to lie about -- now, Sir Ronnie Flanagan had
10 every reason -- I am not saying that he is lying about
11 it. That's not part of my brief, but say he is lying
12 about that incident with Mr Langdon, well, it is out of,
13 you may think, self-interest that he should say he
14 didn't do that, because it might be regarded as
15 something which was totally inappropriate, but what we
16 say is that it is taking a leap in the dark to then say
17 because a person lies about one thing which we can
18 explain out of self-interest, therefore he is the person
19 who is guiding Mr McBurney.
20 Can I say this, sir? That's a very serious
21 allegation to make, not only against
22 Sir Ronnie Flanagan, but it is a very serious allegation
23 to make against Mr McBurney, that a man of his
24 integrity, character and background was essentially
25 colluding with the chief constable to prevent the proper
49
1 investigation of a corrupt policeman. It is founded on
2 sand. It is an allegation, as I say, that came at
3 a very late stage in the day.
4 It is interesting just to see how this allegation
5 arose in terms of Mr McGrory's submissions. It
6 undoubtedly was referred to in a number of lines in his
7 written submissions, as Mr Underwood pointed out.
8 If one looks at page 118 of the consolidated
9 submissions -- sorry, page 118 of Mr McGrory's
10 submissions on 7th December
11 SIR JOHN EVANS: Day 70?
12 REV. BARONESS KATHLEEN RICHARDSON: Day 70.
13 MR ADAIR: At page 118, without calling it up, Mr McGrory
14 suggested it was a crime of opportunity by Mr McBurney.
15 This was the initial allegation made against
16 Mr McBurney, that it was a crime of opportunity.
17 Then at my page 131 on 7th December -- to save time,
18 sir, if I read this, and then in due course I ask you to
19 have a look at it perhaps on the transcript. It is my
20 page 131. That may be 130 or 132. What Mr McGrory says
21 is:
22 "That is right at the heart of this Inquiry, we
23 submit. It is a very, very disturbing submission to
24 have to make, but it is collusion in its worst form. It
25 is a very subtle form of collusion, in the sense that,
50
1 if it is correct that Atkinson, who is a policeman, had
2 engaged in the tipping-off of a murder suspect for one
3 reason or another, and that there was a belief on the
4 part of senior police that that was so, and even in
5 McBurney's case that he is making it was a belief,
6 because, without it, there would have been no strategy,
7 for nothing to be done --
8 "The Chairman: So you say this was collusion
9 between McBurney and his senior officers?
10 "Mr McGrory: No."
11 So on 7th December, in making his submissions, when
12 asked the direct question:
13 "The Chairman: So you say this was collusion
14 between McBurney and his senior officers?
15 "Mr McGrory: No, it is collusion between McBurney
16 and Atkinson, albeit it is not that the two necessarily
17 ever spoke to each other, apart from in the context of
18 the investigation, but it is our respectful submission
19 that, for reasons that were best known to Detective
20 Chief Superintendent McBurney, he," McBurney, "decided
21 to bury it.
22 "Now we can only speculate as to why he might have
23 done that ..."
24 That's absolutely right, because what has happened
25 in this case is, when Mr McGrory, with respect, comes
51
1 back on 8th December, he does start to speculate, and
2 that speculation is because the chief constable has lied
3 about cradling and one or two other matters, therefore
4 he is guilty of collusion, and that's precisely what has
5 happened
6 THE CHAIRMAN: As a matter of logic, if someone tells a lie,
7 you may say that means we have to look more carefully at
8 other parts of his evidence, but you can't then put
9 a proposition to him which he denies and say, "That is
10 a lie", because you have to have some foundation for the
11 proposition.
12 MR ADAIR: Exactly, and there is not.
13 THE CHAIRMAN: The lie is not a foundation.
14 MR ADAIR: No, sir, but what is, in our submission,
15 troubling -- and I come back to where I started -- is
16 that these people are human beings. McBurney's wife is
17 a human being and she reads on this transcript for the
18 first time, not only was his investigative strategy
19 flawed, but he is guilty of collusion with the chief
20 constable. What we say is that this should be, in our
21 submission, not just rejected by the Panel, but should
22 be commented on by the Panel and made clear what their
23 thoughts are about it.
24 Mr McGrory says:
25 "Now we can only speculate as to why he might have
52
1 done that", that's McBurney, "and whether or not he felt
2 he had the green light from his superior officers or had
3 a green light from his superior officers or whether or
4 not he was deceiving his superior officers. We just
5 don't know."
6 "We just don't know". This is on 7th December. By
7 8th December, there is collusion.
8 On 8th December, at page 2, and it may be if we
9 could call this up, page 2 on 8th December, line 14. It
10 is your page 3, this page 3.
11 "Now what we say to that is Detective Chief
12 Superintendent McBurney may have not have set out with
13 that intention", that's the intention of protecting
14 Atkinson, "but that, at a certain point, the opportunity
15 certainly arose for him to take a different course, and
16 that opportunity clearly arose between the interviews of
17 9th September and 9th October, when the ICPC, for some
18 inexplicable reason, which we will come to, absented
19 itself from the supervision of the investigation.
20 "The question then must arise: even if he had
21 an opportunity, why would he take it? Why would
22 a Detective Chief Superintendent take it upon himself to
23 defend the good name of the RUC by deliberately
24 compromising or sabotaging his own investigation into
25 an allegation that there was a corrupt policeman in the
53
1 Land Rover when Robert Hamill was attacked and murdered?
2 Our answer to that has to be he either did it on his own
3 or he had some guiding hand.
4 "The Chairman: Some?
5 "Mr McGrory: Guiding hand. He may" -- and the use
6 of this language is actually interesting -- "He may" --
7 this is a collusion allegation -- "He may have had
8 an indication from someone above him -- he may have
9 had -- that he could behave in this way or that he
10 should behave in this way if the opportunity arose."
11 Then if we go to the next page, line 24, and this is
12 interesting:
13 "We make the submission that if there was a guiding
14 hand, it might" -- "might" -- "have been
15 Sir Ronnie Flanagan."
16 There are other comments, sir, which you will -- and
17 allegations then made, which, again, I am not going to
18 take up the Panel's time with. You will have the
19 opportunity at some stage to read these before
20 considering your conclusions, but they are replete with
21 "may" and "might" and "possibly", but yet the allegation
22 is out there that the stumbling by Mr McBurney was
23 Sir Ronnie Flanagan and his guiding hand.
24 Of course, the reality is, in our submission, that
25 that allegation, or something akin to that, has to be
54
1 made to try to explain why a man such as
2 Maynard McBurney would do as is being suggested. It is
3 a wee bit like, if someone does something or says
4 something about me, which, on one view, might be
5 offensive, but might have an innocent explanation, if
6 I know something about the character of that person,
7 their integrity, their ways of doing things, I will
8 probably say, "Well, I am sure he didn't mean to offend
9 me or mean to hurt me". If, on the other hand, I know
10 he is a rogue, then I will probably say, "He probably
11 intended to damage me either verbally or in whatever
12 other way". That's just part of human nature.
13 Once we know the -- the importance of the character
14 of a person is that they are likely to be more
15 believable, first of all, in what they say, which is
16 common sense, but also in the context of this Inquiry
17 knowing what we do know about McBurney's integrity and
18 what everybody has said about his determination to root
19 out the likes of Atkinson, some startling proposition
20 has to be put to this Inquiry as to why he would have
21 tried to protect him.
22 Of course, the startling proposition is that there
23 was collusion or a guiding hand between
24 Sir Ronnie Flanagan and Mr McBurney, which we ask the
25 Panel to reject out of hand.
55
1 Now, I just want to say also that, in fairness to
2 Mr McBurney, much has been said and much has been
3 alleged about him. Can I remind just very briefly the
4 Panel as to some of the -- as to what some of the
5 witnesses said about what they knew about Mr McBurney?
6 One of those witnesses was Mr Stewart, who, as we
7 know, did not particularly like Mr McBurney. That was
8 certainly the impression that you may have got. At
9 page [1266] of the consolidated submissions, bottom
10 paragraph, this is quoting what Mr Stewart said:
11 "Question: Can I ask you this, just to lay the
12 groundwork for the question first of all? You knew
13 Mr McBurney?
14 "Answer: I did, yes.
15 "Question: Did you get on with him?
16 "Answer: Not especially, no.
17 "Question: Was he a friend?
18 "Answer: No.
19 "Question: If you asked him what day it was, what
20 would his reply be?
21 "Answer: He would probably want to know why you
22 wanted to know what the day was."
23 He further stated then at page 177:
24 "Answer: Having been involved in very considerable
25 detail in this investigation, being aware of everything
56
1 that Mr McBurney did, did you find anything that
2 suggested Mr McBurney was other than enthusiastic in
3 pursuing Atkinson?
4 "Answer: No, nothing.
5 "Question: You did, however, carry out steps that
6 he hadn't. There is no gainsaying that.
7 "Answer: Yes, that's true.
8 "Question: Knowing McBurney as you did, because,
9 unfortunately, as we all know, he is deceased and the
10 Panel will not be able to see him, so it is important we
11 get some flavour about the man, what would have been his
12 attitude towards getting a bad policeman?
13 "Answer: Oh, he would have been absolutely
14 determined to bring that person to justice, totally
15 determined. He would have viewed such a person with
16 absolute disdain."
17 Then at page [1268] starting with the paragraph near
18 the top of the page. This is in the consolidated
19 submissions again:
20 "Perhaps the most significant piece of evidence
21 given as to the conduct and intentions of DCS McBurney
22 in both the murder and tip-off investigations was that
23 of K, who, as we know, re-investigated these matters
24 with a fine-toothed comb. His evidence first dealt with
25 the extent of the original investigation up to the date
57
1 he joined at page 1."
2 Could I have [1269] please, starting at the bottom
3 of the page:
4 "Question: Can you help us about your understanding
5 of why it took until June 2000 for the McKees to be seen
6 again when they split up in 1999?
7 "Answer: In terms of what I was briefed by
8 Mr McBurney, and on my appointment he had indicated to
9 me that his intention was always to monitor the McKees,
10 and he briefed me that they had subsequently separated
11 and he briefed me that his strategy always was that he
12 may have been able to penetrate this conspiracy by
13 taking advantage of that separation, and, consequently,
14 when he found out that they had separated and were both
15 living apart, he took the decision at that point to
16 approach both of them.
17 "Question: Obviously, I am sure you are aware there
18 is a fair amount of controversy about the strategy over
19 the McKees. Sadly, of course, Mr McBurney is unable to
20 answer for himself now.
21 "Answer: Yes.
22 "Question: What I am exercised about is to try to
23 get everybody's impressions as best I can of how he
24 acted. When you were briefed about that and his, as it
25 were, long-term, long-view strategy, how did that strike
58
1 you at the time?
2 "Answer: I had no difficulties with that.
3 "Question: So not so exceptionally mad as to be
4 impossible?
5 "Answer: No. He had to penetrate a conspiracy,
6 which is very, very difficult to do in terms of criminal
7 investigation, and, I mean, I think that his strategy
8 which was discussed with me was that, really, to break
9 a conspiracy, you have to penetrate it and get one of
10 the conspirators to come out and tell the truth about
11 it. I think that, certainly in my view, was a useful
12 strategy.
13 "Question: Okay. Had you worked with him before?
14 "Answer: Yes.
15 "Question: We have had the advantage of seeing
16 Mr Colville Stewart give evidence and, if I may say so,
17 the impression being given is that Mr McBurney is very
18 old school. Colville Stewart, new broom, very aware of
19 new policing techniques, investigative techniques and so
20 on, and making thorough records of everything. Would
21 that be a fair impression of the distinction between
22 those two?
23 "Answer: Yes. I think that is fair. Mr McBurney
24 was a very hardworking detective. He was a detective's
25 detective. You know, he headed up a region through many
59
1 years which encountered many, many murders and he headed
2 up a lot of very serious criminal investigations and he
3 brought a lot of people to book.
4 "So in terms of his commitment to work, I would have
5 no doubt about that.
6 "Question: Or his effectiveness?
7 "Answer: Absolutely. At times, maybe he took too
8 much on and he would have liked to have done things
9 himself."
10 He further stated at 124.
11 "Question: Now, Mr Underwood has already said to
12 you that it is important that the Panel get an
13 impression from people as to what they think about some
14 of the issues that this Panel has to decide. What was
15 your impression, between June 2000 and December 2000, as
16 to whether Mr McBurney was determined to nail
17 Mr Atkinson? What was your impression about that?
18 "Answer: I was under no doubt at all that
19 Mr McBurney was absolutely committed to getting
20 Atkinson. I have no doubt at all that's what he wanted
21 to do from the beginning, and when I was brought into
22 the Inquiry into 2000, he still had that same level of
23 commitment."
24 So that's the evidence you have about the character
25 of Mr McBurney, and it is all the more important, sir,
60
1 I just say in conclusion, when, unfortunately, of
2 course, you have not had the opportunity of seeing and
3 hearing and weighing up what Mr McBurney would say to
4 you in his evidence. That makes what other people say
5 about him, in our submission, all the more important.
6 In our submission, one would need to have very
7 cogent evidence, and I am not going to start quoting
8 I think it is the Doherty case as to the nature of the
9 allegations and the cogency of the evidence, but in our
10 submission one would need to have very cogent evidence
11 before one would draw any adverse conclusion concerning
12 the actions and investigations that Mr McBurney carried
13 out.
14 Those are our submissions
15 THE CHAIRMAN: Can you just deal with this point finally?
16 As we have just seen, K was appointed to the
17 investigation before McBurney's retirement.
18 MR ADAIR: That's right.
19 THE CHAIRMAN: Before his removal from the Inquiry, K told
20 us that he was put in charge of the tipping-off
21 investigation, did he not?
22 MR ADAIR: Yes.
23 THE CHAIRMAN: Now, do you want to say anything about
24 whether assigning that task to him was consistent or
25 inconsistent with the proposition that McBurney was
61
1 intent on stifling that investigation or was it neutral
2 in that respect?
3 MR ADAIR: It was absolutely inconsistent. If McBurney was
4 intent on stifling this investigation, why would he put
5 K in charge of it, one rhetorically asks?
6 THE CHAIRMAN: Thank you.
7 MR ADAIR: Thank you, sir.
8 MR McGUINNESS: Sir, I think it now falls on me. I will be
9 about an hour, sir. I don't know whether the Panel want
10 to take a quick break and allow me to run straight
11 through, or whether you prefer that I commence now?
12 THE CHAIRMAN: We will begin.
13 MR McGUINNESS: Could I take Mr Adair's lectern?
14 THE CHAIRMAN: You will bear in mind, I am sure,
15 Mr McGuinness, we have your written submissions. There
16 is no need to repeat them. Things you need to add, of
17 course you will.
18 Closing submissions by MR McGUINNESS
19 MR McGUINNESS: I am sure I will be guided by you, sir, if
20 you feel I am repeating my written submissions.
21 I had initially intended to be brief, but as matters
22 have transpired over the last number of days, I can't
23 now be as brief as I had initially intended to be.
24 I intend presenting my closing, sir, to deal with
25 the three chapters that appear to be relevant to
62
1 Sir Ronnie Flanagan and to which we were directed. That
2 is chapters 14-16. However, prior to addressing those
3 three particular chapters, I think it is important to
4 remind the Inquiry of the status of Sir Ronnie Flanagan
5 within these proceedings.
6 You will all be well aware he is a witness to the
7 Inquiry rather than a full participant. His
8 participation, and consequently that of his legal
9 representatives, have been, by necessity, given the
10 Inquiry's view on Sir Ronnie Flanagan's involvement,
11 limited. That has been set out in my written
12 submissions, but I do think it bears reiteration today,
13 sir
14 THE CHAIRMAN: I think we have it well in mind. We read it
15 quite a number of times in your submissions.
16 MR McGUINNESS: We say, sir, that it is not our intention to
17 deal, therefore, with anything other than his individual
18 role. We don't seek to comment on matters which are
19 outside of our participation. In particular, I suggest,
20 sir, that you have had the opportunity now to see and
21 hear Sir Ronnie Flanagan give evidence on two occasions.
22 I take this opportunity to thank the Inquiry for
23 allowing him to meet and address the very serious
24 allegations that have been made, we say, without
25 foundation and in an unacceptable manner, but we thank
63
1 the Inquiry for allowing him to meet those fairly.
2 I do wish to reiterate the danger of hindsight.
3 I think it is particularly important, when one views the
4 role of Sir Ronnie Flanagan in this Inquiry. It is
5 easy, sir, perhaps against the background of a sterile
6 chambers and 12 years later, to look at matters
7 retrospectively and see things as obvious without taking
8 account of context and the voluminous issues being dealt
9 with by Sir Ronnie Flanagan as Chief Constable in the
10 context of Northern Ireland on a daily basis at that
11 time.
12 We say that when assessing Sir Ronnie Flanagan's
13 actions, insofar as they are relevant to the terms of
14 reference, firstly, I adopt what Mr Adair has said about
15 the fact you must find an act or omission is wrongful,
16 but I go on to say you must assess his actions not --
17 again this is trampling over ground that has very
18 recently been trampled, but I say you must look at
19 what -- not at what you would have done, sir, in the
20 particular circumstances he met, but, rather, whether
21 his actions were within the band of reasonable actions
22 open to a Chief Constable.
23 I have contextualised, sir, in my written
24 submissions, the difficulties facing Sir Ronnie Flanagan
25 as Chief Constable. Hopefully, it is the last time
64
1 I repeat something that you may have read on a number of
2 occasions in the written submissions.
3 We say, as Chief Constable, he was Chief Constable
4 of a force against which there was a very specific risk
5 of terrorist threat. The politicisation of the police
6 force meant that his role as Chief Constable in
7 Northern Ireland was perhaps unique in British policing
8 terms at the time. The events that surrounded the
9 unhappy death of Mr Hamill, we point to the number of
10 other significant national events and, by "national"
11 I refer to province-wide, national events that were
12 going on.
13 There were two elections in May 1997. The IRA were
14 no longer on ceasefire. We have evidence from
15 Professor McEvoy and from Sir Ronnie Flanagan as to the
16 difficulties that had occurred following the reversal of
17 the decision in 1996 to allow the marches down the
18 Drumcree Road, the effect that had on the confidence of
19 one or both communities and the RUC, the fact that in
20 May 1997 this loomed large, sir, and with the attendant
21 difficulty of bringing the province again to
22 a standstill, as it had in 1996, and in July 1997, as
23 you will have heard from Mr Adair, two police officers
24 were murdered whilst walking the beat in Lurgan, that
25 being matters of fact which DCS McBurney was called upon
65
1 to deal with.
2 That context, and the almost unique position, I say,
3 in my respectful submission of the chief constable of
4 Northern Ireland at that time in those terms is perhaps
5 the reason why Mr McGrory accepts that and accepted this
6 when he cross-examined Sir Ronnie Flanagan, that
7 Sir Ronnie is a policeman of unparalleled experience,
8 and I submit, sir, that Sir Ronnie's expertise should be
9 taken into account when assessing his actions and his
10 particular observations as to the role of a chief police
11 officer.
12 Now, to turn to chapter 14 first, sir, that's the
13 tipping-off allegation, if page [1048] of the Inquiry
14 submission might be brought up, I say -- and if
15 paragraph 2.18 might be highlighted, I say there is
16 an error here and a comment has been inserted
17 inappropriately. I think Mr Underwood may agree that
18 that's, in fact, the case. The comment being:
19 "This speaks to the fear of the unwinding of the
20 Hobson prosecution if Reserve Constable Atkinson were
21 successfully prosecuted."
22 This deals, sir, with an NIO document which suggests
23 that the chief constable and Attorney General were
24 sensitive to what they saw as interference. I say that
25 comment cannot be appropriately attributed to the
66
1 document, because if one looks at the document at
2 [39453] --
3 MR UNDERWOOD: If it helps, I should make clear the
4 parenthesised words there were never intended to be
5 published. They were a reference in there for the
6 purposes of my team to cross-reference documents and
7 I accept what my friend says on this.
8 MR McGUINNESS: Perhaps if we could turn to the next
9 page and perhaps if we could go on, [39455], and if
10 paragraph 8 might be highlighted, one sees the
11 paragraph in its totality:
12 "As the Secretary of State has told the Hamill
13 family, she has no role in the prosecution process or
14 indeed in consideration of the disciplinary aspects of
15 the case. It would not appropriate for her to be
16 involved in these. The Secretary of State should note
17 that the chief constable and Attorney and DPP are very
18 sensitive to what they would see as any interference."
19 I say, sir, that speaks to interference in the role
20 of the prosecution process or, indeed, disciplinary
21 aspects of the case. Nowhere in this document is there
22 any reference to Reserve Constable Atkinson.
23 Why this is important is because British Irish
24 Rights Watch refer to this in their submission and use
25 this as corroborative evidence to suggest that that was,
67
1 in fact, the chief constable's intention and that, in
2 fact, and he was sensitive to the suggestion that any
3 interference might unwind the Hobson prosecution and
4 unveil, to paraphrase it, the identity of Reserve
5 Constable Atkinson.
6 Whilst I will deal with this more extensively
7 whenever I deal with the chapter 16 collusion, I say
8 there is simply no evidence from which an inference
9 might be drawn that there was any desire to repress the
10 allegation, that's the tipping-off allegation. I take
11 this opportunity to remind you of the evidence.
12 We say that the first time Sir Ronnie Flanagan was
13 made aware of the tipping-off allegation is
14 12th May 1997. We say that the context of that was that
15 he was made aware of the allegation by ACC Hall, but
16 that, in doing so, ACC Hall indicated that both the ICPC
17 were investigating it and that it was being dealt with
18 by Complaints and Discipline.
19 If Day 55, page 32 might be brought up, this is the
20 evidence of ACC Hall, at line 21:
21 "Answer: Well, I can't give you chapter and verse
22 12 years later out of a plethora of meetings, but they
23 would have held the same -- those officers would have
24 held views similar to my own, that anything touching
25 upon the integrity of a police officer or misbehaviour
68
1 or alleged criminal conduct could not be tolerated and
2 required rigorous investigation.
3 "They would have been satisfied, as was I, that the
4 matter was in the hands of the ICPC, the Independent
5 Commission for Police Complaints as part of the overall
6 supervision and investigation into the circumstances
7 touching upon the death of the late Robert Hamill ..."
8 So I say, sir, that the circumstances in which
9 Sir Ronnie Flanagan first became aware of this was on
10 12th May.
11 It has been suggested that it is -- I think the term
12 used was it is remarkable, or you might think it is
13 remarkable, that he was not told on 10th May in the
14 conversation between himself and Maynard McBurney of the
15 facts of the tipping-off allegation, but at this stage
16 it may be useful, sir, to remind you what Mr McBurney,
17 in fact, said about that conversation.
18 In his statement -- I will not take you to his
19 statement, because I intend to take you to the
20 interview, which is perhaps more comprehensive, he
21 indicates he can't be sure exactly what he told the
22 chief constable on the telephone call. However, he
23 would have been sure that the chief constable would have
24 been made aware of the allegation very quickly
25 afterwards.
69
1 Now, if one looks at the interview, it is the first
2 interview of Maynard McBurney. It is at page [114].
3 That's 4th May 2006 interview: one will see, sir -- you
4 will see, sir, that Mr McBurney indicates in the
5 substantive paragraph that one of the things he does --
6 he is talking through the events of 9th and 10th May.
7 He indicates that he was updating the chief constable:
8 "Stephens: Right, we'll stop there. You updated
9 the chief constable personally on that?
10 "McBurney: Yes.
11 "Stephens: Was that the normal way you dealt with
12 things?
13 "McBurney: No.
14 "Stephens: Right.
15 "McBurney: When I say I updated with the chief
16 constable, the chief constable rang the office and asked
17 for me, wanting to know what was going on, and so the
18 present state of the Inquiry.
19 "Stephens: So the chief had that hands-on approach
20 to it as well?
21 "McBurney: Yes. After that, ACC South updated
22 continuously -- this is all the one way now.
23 "Stephens: Right. So on 10th May then -- I just
24 want to clarify this situation -- on 10th May, the chief
25 constable was aware that you had evidence or you had a
70
1 statement about Atkinson, the Reserve Constable?
2 "McBurney: Let me finish this first. Continuous
3 liaison with Detective Chief ... again, in the
4 afternoon, updating the chief constable; again, in the
5 afternoon, updating ACC South and then the discussions
6 with the detective (several inaudible words), oh, yes.
7 That must be the notes there that you referred to.
8 Discussions with the detective inspector regarding
9 further arrests. The question you asked me, was the
10 chief constable and ACC aware of Atkinson?
11 "Stephens: Yes, and I want to know what advice you
12 got from them, really.
13 "McBurney: Oh. The ... I'm not sure just exactly
14 what I would have told ... because I was happy enough
15 with what I was doing and the course I was taking.
16 "Stephens: The reason I asked the question about
17 the ACC, and the chief and that sort of thing;
18 obviously, you'd given them a brief; the chief has
19 spoken to you and you say, 'What's going on? Tell me
20 what's happening?'
21 "McBurney: Yes.
22 "Stephens: Because of the ... because he's
23 obviously got the political overtones of that coming in
24 from [blank] who'd made the complaint, presumably.
25 "McBurney: Yes.
71
1 "Stephens: And you give him a brief and I just
2 wanted to know really what his thoughts were. If --
3 "McBurney: He was happy to wait for my views.
4 "Stephens: Right. But as such he would have been
5 told everything that you had at that stage, whether it
6 was the murder, the complaint that the ICPC were dealing
7 with, and the issues regarding the Reserve Constable.
8 "McBurney: I cannot be certain about that. We were
9 ... I was in possession of all that evidence -- or not
10 evidence -- but that knowledge at the time."
11 If I stop there, sir, that may well be the evidence
12 of Tracey Clarke or the knowledge of the statement of
13 Tracey Clarke, but not the evidence of the telephone
14 records. He goes on:
15 "I cannot be certain exactly what I said to him, or,
16 indeed, the ACC.
17 "Stephens: But you wouldn't have kept that sort of
18 thing from the Chief Constable, presumably.
19 "McBurney: Um ... he may just have asked about
20 arrests -- how many have we arrested? What were the
21 chances of success? Advise me when you have him charged
22 or if you can charge him or what the score is."
23 So what I say that suggests, sir, is that these are
24 all reasons why it may not be remarkable that
25 Mr McBurney did not tell the Chief Constable on 10th May
72
1 about the Tracey Clarke statement.
2 Now, Sir Ronnie Flanagan's evidence is that he
3 doesn't have a recollection of those telephone
4 conversations, but he is happy they occurred, but what
5 I say, sir -- so I don't put a positive case and say it
6 was not said to him, but what I say, sir, is that the
7 evidence of Mr McBurney is that it may not have been,
8 and in answer to the suggestion that it is remarkable
9 that it may not have been, the answer is that there were
10 a number of other issues that the Chief Constable may
11 have been concerned about at that time.
12 I have indicated, sir, that the matter was brought
13 to his attention on 12th May. The matter next
14 appears -- the direct evidence next appears that the
15 tipping-off allegation comes to his attention in
16 December 1997. That's regarding the reply to the
17 Secretary of State. I will deal with that when I deal
18 with the collusion issues.
19 As you all know, the final time that the matter
20 comes before -- the direct evidence is that the matter
21 comes before Sir Ronnie is in June 2000 and from there
22 on.
23 I submit, sir, that Sir Ronnie's -- that there is
24 nothing in any of these actions that suggests
25 an intention to repress evidence, that they reflect the
73
1 role of a Chief Constable and that that role is not one
2 of direct involvement in an investigation. It is not
3 a role to direct investigative strategy. It is, as
4 Sir Ronnie indicated yesterday, and I paraphrase him,
5 his role is not to micromanage an investigation, rather,
6 it is to ensure that the resources are available to
7 ensure that the investigation can progress
8 appropriately.
9 I say, sir, that it is significant that
10 Sir Ronnie Flanagan was not on notice during this
11 period -- there is no evidence that he was on notice,
12 that there were any issues with the investigation of the
13 tipping-off allegation. He was not on notice that were
14 any issues with the supervision of the ICPC -- the
15 supervision of the investigation by the ICPC.
16 In fact, when one looks at the second statement of
17 Mr Paul Donnelly, who was the Chairman of the ICPC, he
18 indicates:
19 "It was reasonable on the senior police officer's
20 behalf to have expected the linking of the Atkinson
21 allegation because the practice was quite normal."
22 I say this just fatally undermines the BIRW
23 suggestion that it was scandalous that no senior
24 officers sought to check that the ICPC were
25 investigating the matter, effectively because, sir, we
74
1 say the matter had been brought to Sir Ronnie's
2 attention. It had been brought in circumstances that he
3 had been told the ICPC were looking after the matter,
4 that Complaints and Discipline were investigating, and
5 that, I say, must be enough to satisfy a reasonable
6 chief constable that the investigation has been properly
7 investigated at that stage and the matter has been
8 appropriately dealt with.
9 BIRW go on, in my respectful submission, to misstate
10 the evidence when they refer to Sir Ronnie Flanagan,
11 when they refer to the letter from the police Ombudsman
12 at [14380]. They suggest that the Ombudsman openly
13 accused the RUC of seeking to stave off a public Inquiry
14 into the Robert Hamill case. However, that's not
15 correct, because if one looks at the documentation, what
16 Mr Mahaffey is, in fact, doing is he is asking
17 Sir Ronnie:
18 "I would be grateful if you could throw any light on
19 these matters in particular:
20 "1. Are you aware as to why no action was taken by
21 Mr McBurney relating these alibi witnesses ...
22 "2. Whether there were any other motivating factors
23 relating to the investigation of enquiries in
24 June 2000."
25 BIRW suggest this letter is a criticism; the purpose
75
1 of this letter is to criticise Sir Ronnie Flanagan and
2 his actions, whereas, in fact, it is nothing more than
3 a request, sir. So I say their evidence in that and
4 their written submission is inaccurate and is
5 inappropriate.
6 They also suggest in chapter 14, sir, that
7 Sir Ronnie would not take ownership of the Andrea McKee
8 incident that we have referred to latterly, if he
9 didn't, in fact, do it. However, we say that they
10 misunderstood the evidence and, in effect, my
11 submissions are in concurrence with what Mr Adair says,
12 in that we say that Sir Ronnie did not take
13 responsibility for the re-investigation. Rather, his
14 evidence is that he encouraged Mr McBurney to take steps
15 to try to prosecute a criminal within the ranks of the
16 RUC. A matter that, for example, Mr Langdon suggests
17 was Sir Ronnie's emphasised intention at all stages.
18 That can be seen for your note at Day 67, pages 32-33.
19 Sir Ronnie goes further to indicate that his course
20 of action was not resisted by DCS McBurney in any way.
21 Now, if I turn, sir, to the chapter dealing with the
22 ICPC, it is not the purpose of our submission to
23 criticise the ICPC or seek the Inquiry to make any
24 specific finding against them. Rather, to address what
25 is, in fact, the only potential criticism or inference
76
1 which has been identified within the Inquiry written
2 documentation.
3 As regards the ICPC, we say that the evidence
4 clearly establishes a number of important facts.
5 Firstly, we say it is important and the evidence
6 establishes that Sir Ronnie Flanagan instituted
7 a policy, whenever he became chief constable of the RUC,
8 of referring all public interest matters to the ICPC
9 under Article 8. This, we say, is corroborated by
10 Mr Paul Donnelly in his evidence, who, in fact, draws
11 a distinction between Sir Ronnie's view and his actions
12 and those of his predecessor in the post. He indicates
13 that Sir Ronnie was, on every occasion, prepared to
14 refer an Article 8 matter.
15 We say this is proactive and reflects, in our
16 submission, his desire for a rigorous and transparent
17 investigation.
18 In this case, sir, we suggest, and it has been
19 suggested in our written submissions, and I will not go
20 through why we suggest there was an Article 8 referral
21 under Article 8.1, but, even if there was not, sir, we
22 suggest that the practice of the ICPC was such that it
23 would have been reasonable for Sir Ronnie Flanagan to
24 assume that they were, in fact, investigating the
25 matters.
77
1 We say that in this submission the evidence of
2 Mr Donnelly is critical, because it establishes that,
3 once the allegation was established, he suggests it
4 should have come within the ambit of the complaint
5 investigation and that it was reasonable on the senior
6 officer's behalf to have assumed this linking, as it was
7 normal practice. That's found in paragraph 2 of his
8 second statement, which, unfortunately, I don't have
9 a reference number for, but for your reference that can
10 be found there.
11 So in effect, sir, I am saying that, even if the
12 ICPC were precluded in law from supervising the
13 tipping-off allegation, even if it were not right, that
14 there was an Article 8 referral, if you find as a matter
15 of law, sir, it was an Article 7 referral and the ICPC
16 could not have supervised the matter, we say that the
17 evidence of Mr Donnelly suggests a clear practice and
18 procedure on behalf of the ICPC. This practice and
19 procedure was such that it was reasonable for the senior
20 officers to conclude and to come to the conclusion that
21 the matter would be drawn in.
22 In one sense, this expectation was in the matter of
23 a legitimate expectation, whether legitimate or not,
24 because obviously one cannot have a legitimate
25 expectation of an unlawful act.
78
1 THE CHAIRMAN: An expectation cannot be legitimate in public
2 law terms unless it is a lawful expectation?
3 MR McGUINNESS: That's exactly what I accept, sir, but when
4 everyone is looking at the actions of the senior
5 officers and indicating, "Was it reasonable for them to
6 have had that expectation", the practice and procedure
7 was such at the time, sir, that we say that it was
8 reasonable for them to have had that expectation, and
9 the corollary of that being, therefore, that it would
10 not have been reasonable for Sir Ronnie Flanagan
11 personally to have taken it upon himself to ensure that
12 there ought -- that the ICPC were, in fact, supervising
13 the investigation, when their practice was the evidence
14 is to supervise such investigations.
15 Whenever one adds that to the fact that there is no
16 suggestion that Sir Ronnie was ever on any notice that
17 the ICPC were not, in fact, investigating this, we say
18 it is inconceivable that a chief constable would, or
19 should, second guess or verify the information being
20 given to him by his senior officers, that information
21 being given, we say, by ACC Hall on 12th May.
22 The representatives on behalf of Mr Mullan sought
23 to suggest in their written submissions that there is no
24 reason why Sir Ronnie Flanagan believed that the ICPC
25 were investigating the Atkinson allegations. We say
79
1 this is erroneous. Whilst they could have asked that
2 question of him themselves, we say it is clear from
3 Sir Ronnie's oral evidence that it is ACC Hall's
4 briefing that the ICPC were supervising the
5 investigation along with his policy of Article 8
6 referral, which deals with that point.
7 They go further and suggest that Mr Atkinson did not
8 see any of the documents substantiating an Article 8
9 referral. However, they, in our respectful submission,
10 sir, do not address -- Mr Mullan does not appear to
11 address the document at [15273]. That's the document
12 that refers to the previous -- where there is a tick
13 indicating there had been a previous referral. We say
14 that Mr Mullan's lack of awareness, for example, of
15 a conversation between Mr Murnaghan and ACC Hall does
16 not weaken the evidence that that conversation, in fact,
17 took place
18 THE CHAIRMAN: Well, the fact seems to be that both the ICPC
19 and the RUC did not properly understand the provisions
20 of Article 8. Where the fault lies precisely in each of
21 those organisations we perhaps don't need to consider.
22 MR McGUINNESS: That may be correct, sir.
23 BIRW suggest in paragraph 15, sir, that given the
24 ICPC's lack of independence and rigour, that the chief
25 constable should have used his powers to appoint
80
1 an officer from an outside force to investigate matters.
2 At this stage, sir, I think it bears reiteration
3 that the ICPC had greater powers than their equivalent
4 in England and Wales. If you remember the evidence,
5 they had the power to direct as well as supervise.
6 Whilst, when the Police Ombudsman was introduced, it
7 was, and still is, I understand, at the forefront of
8 thinking and procedure in police complaints, that it was
9 replaced does not mean that the ICPC were, therefore,
10 totally ineffective.
11 In one sense, one might say the ICPC was the only
12 show in town. The chief constable was constitutionally
13 obliged to engage with the ICPC because that was the
14 manner in which the Executive had decided that police
15 complaints were going to be pursued.
16 Now, if one turns -- if I turn, sir, to chapter 16,
17 that's titled "Collusion and Neglect". Of course,
18 collusion is not mentioned in the terms of reference, in
19 my respectful submission. However, as I have already
20 said, I adopt what Mr Adair has indicated as regards
21 a definition of "wrongful": unfair, unlawful, illegal.
22 I have, for my sins, gone to look to see what the Oxford
23 English dictionary says about collusion. As you will
24 know, sir, it indicates that collusion is a secret
25 understanding for a fraudulent purpose.
81
1 It is my submission, clearly, that collusion must
2 involve an intentional act or an intentional omission,
3 but in any event, it must intend to have a collusive
4 purpose, unlike, perhaps, discrimination, which can be
5 indirect and unwitting.
6 THE CHAIRMAN: Collusion would obviously come under the
7 umbrella of wrongful, wouldn't it?
8 MR McGUINNESS: Yes, I think that's probably correct, sir.
9 THE CHAIRMAN: Does more need to be said about that?
10 MR McGUINNESS: No, sir, I will move on.
11 At this stage, I have to deal with the suggestions
12 made by Mr McGrory last Monday and Tuesday. We say that
13 the manner in which the allegations were made was
14 something of an ambush. We say, if you look at his
15 written submissions at paragraph 17, which is at
16 page [1278], three scenarios are suggested. In those
17 scenarios -- if that could be brought up, [1278] -- at
18 paragraph 17 he indicates:
19 "If the Panel is persuaded that DCS McBurney was
20 guilty of the deliberate protection of Reserve
21 Constable Atkinson, then it must consider three
22 possibilities that directly concern the chief constable:
23 either he (i) acted alone in defiance of his superiors",
24 that's Mr McBurney, "(ii) he felt encouraged by their
25 apparent disinterest to behave in the way he did", so
82
1 again he is referring to the disinterest of the
2 superiors, "or (iii) he was acting on direct
3 instructions."
4 Having referred in the two preceding paragraphs to
5 "superiors", plural, the natural reading of that was
6 that he was acting on the direct instructions of his
7 superiors.
8 Now at no stage, sir, was the allegation stitched
9 together to portray an allegation in the written
10 submissions, we say, against Sir Ronnie Flanagan alone.
11 However, we now know from his oral submissions on Day 71
12 he indicates the nod could only have come from
13 Sir Ronnie Flanagan.
14 We say you might be rightly concerned that this is
15 a most serious allegation to make. To do so at this
16 stage in the proceedings is procedurally unfair and
17 might be regarded as outrageous. Lest there be any
18 doubt, it is clear, sir, that those are refuted in their
19 entirety.
20 Mr McGrory asks you to draw inferences and attach
21 them, we say, to no direct evidence.
22 THE CHAIRMAN: Mr McGuinness, it may have been unfortunate
23 that matters were not put to Sir Ronnie which should
24 have been, but in the event, Sir Ronnie has suffered no
25 unfairness, because arrangements were made that he could
83
1 give evidence again and deal with these matters.
2 MR McGUINNESS: I say that's not right, sir. I say where
3 the unfairness against Sir Ronnie may attract is that,
4 given Sir Ronnie Flanagan has had very limited
5 participation in this Inquiry, given the fact that the
6 allegation that is now made, albeit it is made in
7 language that does not even meet the standard of
8 proof -- it is allegations that may be, and there is use
9 of the word "speculate" -- we say it is unacceptable,
10 because essentially now every action of Mr McBurney, if
11 Mr McGrory's submission is to be treated appropriately,
12 must be looked at through the prism of whether
13 Sir Ronnie Flanagan had any guiding hand in that action.
14 Now, why I say it is then potentially unfair,
15 despite the fact that Sir Ronnie Flanagan has had the
16 opportunity to deny it and to absolutely refute those
17 allegations, is that one might have expected, sir, at
18 that stage -- had this matter been raised at the start,
19 undoubtedly Sir Ronnie Flanagan would have been made
20 a full participant, or at the very least --
21 THE CHAIRMAN: Raised at the start by whom?
22 MR McGUINNESS: By Mr McGrory.
23 THE CHAIRMAN: Forgive me. Mr Underwood opened the various
24 matters. Matters then emerged as there was
25 cross-examination about them. There was no obligation
84
1 on parties to say, "Well, I want to make an allegation
2 about such and such at the outset". Let's get on to the
3 next point, shall we?
4 MR McGUINNESS: Perhaps I will put in in a different way,
5 sir. We have not had the opportunity to attend the
6 evidence that was given about Mr McBurney and to
7 consider all the documentation that refers to
8 Mr McBurney and to cross-examine, with particular
9 reference to Sir Ronnie Flanagan, any of those
10 witnesses. That's where I say, sir, there may be
11 potential unfairness. I do not put it any higher, but
12 I say if it is right or if the suggestion is to be
13 treated appropriately, that Sir Ronnie Flanagan had
14 a guiding hand, then he deserves not only to answer that
15 but to put questions to any witnesses that are relevant
16 and have access to that information.
17 THE CHAIRMAN: Yes.
18 MR McGUINNESS: We say that the allegations made on behalf
19 of the family are inherently contradictory, incorrect
20 and without any evidential basis, although we don't say
21 this makes it any more acceptable to raise them at this
22 very late stage. We say the contradiction can most
23 clearly be seen in the approach to DCS McBurney who is
24 criticised as guilty of deliberate protection of Reserve
25 Constable Atkinson in the written and oral closings.
85
1 However -- Mr Adair touched on this -- as Mr McGrory
2 was unable to explain why Mr McBurney would tell so many
3 people about the tipping-off allegation, he has sought
4 to rehabilitate Mr McBurney to an extent to explain his
5 actions that may have set out with the most upright
6 intention, but that the unforeseeable decision of the
7 ICPC allowed him to subvert the investigation.
8 I think that's the submission Mr McGrory was
9 effectively making. He was saying, if he started off
10 with an honest and upright intention -- he was presented
11 with an opportunity. This opportunity was the ICPC
12 indicating they were not going to supervise the
13 tipping-off. I say, sir, that would have been
14 unforeseeable whenever he was first appointed to the
15 investigation, and, correspondingly, that would have
16 been unforeseeable to any guiding hand, if there was
17 a guiding hand, and if that guiding hand had been acting
18 from 10th May, the guiding hand would not have known,
19 nor would Mr McBurney have known, that the ICPC would
20 have taken that course.
21 We say that this is one example of the twists and
22 turns that are required to try to make the evidence fit
23 the theory, because that's what we say effectively
24 Mr McGrory's submissions amount to.
25 We don't accept the proposition that
86
1 Sir Ronnie Flanagan's reputation has in any way been
2 damaged by his evidence. Rather, we suggest that his
3 character has expressly been put into question by
4 Mr McGrory and that correspondingly you ought to take
5 into account his good character, sir.
6 We say that -- it is my submission, sir, that
7 Mr McGrory's submissions take what are essentially
8 a series of unremarkable pieces of evidence and use them
9 to suggest the most extreme and inherently improbable
10 inferences, that -- whenever he applies this to a lack
11 of any direct evidence and attempts to infer a sinister
12 intent.
13 What I want to do, sir, as a result of that, is to
14 address the evidence one final time. I say that it is
15 clear the evidence going to Sir Ronnie Flanagan was that
16 he kept himself up-to-date with all the pertinent
17 issues, not least via weekly briefings via regional
18 ACCs. This is against the background of his being head
19 of one of the largest police forces in the world and
20 against a background of terrorism and significant
21 political tension and unrest.
22 We say it is not correct that Sir Ronnie Flanagan
23 has been less than candid with the Inquiry, but what we
24 do ask you to do is take cognisance that
25 Sir Ronnie Flanagan, like all of the witnesses to the
87
1 Inquiry, are given their evidence at a 12-year remove.
2 To some witnesses the events -- the unhappy events of
3 Robert Hamill's death may very well have been the most
4 significant events in their lives. To other witnesses
5 to the Inquiry the unhappy events of Robert Hamill's
6 death may be one of a number of significant and serious
7 incidents, and I ask you to take into account, sir, the
8 fact that that's exactly the position we say with
9 Sir Ronnie Flanagan. This was undoubtedly a serious,
10 significant event, but in his case it was one of
11 a number of significant, serious events.
12 Much of the evidence has been informed by the
13 existence of contemporaneous documentation, rather than
14 first-hand recollection. We say that documentation,
15 whilst it is obviously of evidential assistance, ought
16 not to be, and I am confident you will not elevate it to
17 any unimpeachable status.
18 It is, sir, in the human psyche and character to err
19 and make mistakes, and that must not be forgotten or
20 cast aside whenever one weighs the evidence. The lack
21 of candour appears to attract, in my respectful
22 submission, or the submission that there is a lack of
23 candour attracts to two documents. Those two documents
24 are the document of Sir xxxxxxxxx, which is the
25 meeting of 9th June, and the memorandum relating to the
88
1 meeting with Mr Anthony Langdon.
2 I have a number of points about both documents. It
3 must be remembered that neither of these documents
4 purport to be verbatim notes of the conversation. They
5 are nothing more than memoranda. Mr Langdon, in fact,
6 accepts that he was paraphrasing Sir Ronnie Flanagan on
7 occasion. That's found in his evidence at Day --
8 I apologise, sir. It is Day 67, page 26. If that could
9 be brought up. That's 7-10.
10 "Question: Now, am I right to say that these
11 comments are paraphrasing what Sir Ronnie has said?
12 They are not in inverted commas and, for example --
13 "Answer: No. Absolutely."
14 The second point I make about the documents is they
15 are not contemporaneous notes, both documents having
16 been made some time later.
17 THE CHAIRMAN: You made that point already and we have it.
18 Yes?
19 MR McGUINNESS: Both documents contain subjective
20 impressions and evaluations. So, for example, the
21 reference in the document, Sir xxxxxxxxxx's memo,
22 that suggests Sir Ronnie Flanagan, which is denied,
23 would have dismissed Reserve Constable Atkinson at the
24 Permanent Undersecretary's request, that's paraphrased
25 by the word "implied". So essentially what we have is
89
1 Sir xxxxxxlooking at a nuance and obtaining this
2 objective impression.
3 I don't submit, sir, that either of the authors of
4 those documents has any improper motivation for
5 recording the impressions as they did.
6 That Mr Langdon, who gave evidence, doesn't have
7 a complete recollection of the meeting in my respectful
8 submission is not surprising, given the ten-year remove,
9 and, therefore, we are left with the accuracy of his
10 notes. That, in my respectful submission, was the tenet
11 of the evidence of Mr Langdon, that he had no reason to
12 dispute the accuracy of his notes.
13 He appears to have had two recollections. The first
14 recollection is to do with the cradling movement, which
15 I deal with in due course, and I don't say is
16 particularly germane. The second recollection is
17 effectively Sir Ronnie Flanagan was indicating that he
18 felt his force was being unfairly pilloried. Aside from
19 that Mr Langdon said before you, "I have no reason to
20 doubt the accuracy of my notes", except I say what you
21 must take into account is that the notes he accepts are
22 inaccurate in two places. So if his evidence is,
23 "I have no reason to doubt the accuracy of my note", you
24 must take into account the fact that he then accepts
25 that his note is not completely accurate.
90
1 The two places I suggest the note is inaccurate is
2 he accepts -- again it is at day 67, page 31. Firstly,
3 you will remember, sir, -- I have brought myself on
4 slightly further. I will deal with this in just one
5 moment. You will remember, sir, the difference between
6 the word in inverted commas "gem" that Mr Langdon refers
7 to. Sir Ronnie indicates he would not use a word like
8 "gem". He would use "gen". Mr Langdon accepted that.
9 Secondly, at paragraph 7, which Mr Adair had
10 referred you to earlier, there is a comment in brackets,
11 and it is suggested to him at page 31, 19:
12 "Question: So is it likely that whenever you refer
13 to the chief constable suggesting that he had 'pushed
14 and pushed' the information -- the more recent
15 information which was provided to the Hamill family
16 I~understand would have been in and round 7th June the
17 decision was taken not to have a coroner's inquest.
18 Is it not, therefore, more likely that that's what
19 precipitated any reaction from the chief constable?
20 Answer: The comment in -- I haven't got it on the
21 screen -- "where the 'gem' comes, the comment that I make
22 in brackets there might very well have been inaccurate
23 and the information that he was talking about might have
24 been other information I agree, but it must have had
25 something to do with the action that the coroner took
91
1 when the inquest was aborted."
2 So that's how I read it all.
3 THE CHAIRMAN: Yes.
4 MR McGUINNESS: Effectively this is a note that is not
5 without inaccuracy. The comments in paragraph 3 of that
6 particular note, in particular the cradling action
7 issue, we say this is a subjective interpretation. It
8 is Mr Langdon's error and nuance; that what
9 Sir Ronnie Flanagan was, in fact, saying was that -- and
10 this is the evidence that he gave -- he was not saying
11 that it was a member of the family who had cradled the
12 head, but it could have been anyone at the scene. It
13 could have been a police officer or a civilian.
14 At the time he gave his evidence, sir, it is clear,
15 and this is found at Day 61, page 256, line 16, where he
16 says:
17 "I think that's a quite disgraceful record of the
18 conversation that we had. What was suggested to me --
19 I remember being absolutely shocked when Robert Hamill
20 died, because my belief was that he was progressing well
21 and that he was not at risk of dying. In asking
22 people -- and I think it may well have been in
23 a conversation with Maynard McBurney -- there would have
24 been a general discussion that sometimes people, not
25 specifically the family, but even at the scene who would
92
1 cradle a person, but to suggest that Robert Hamill's
2 death was due to anything other than the beating he
3 received at the hand of his assailants is absolutely
4 disgraceful."
5 What he is saying there is this is an inappropriate
6 record and he is also indicating that the source of his
7 information as to any oxygen starvation or cradling
8 would have come from his discussions from others.
9 That is in effect what he said yesterday, sir, when
10 he gave evidence, and he indicated when it was put to
11 him again as regards the Langdon allegations that any
12 conversation he would have had would be in context of
13 others suggesting something. We say that his evidence
14 yesterday was on all fours with his evidence on
15 10th May, and that is clearly that any evidence he had
16 been given had been suggested to him by other people.
17 We say that the second recollection of Mr Langdon is
18 significant, that is, that Sir Ronnie's drift was that
19 his force was being unfairly pilloried. For your note
20 that's at Day 67, 22, 20-25.
21 I ask you to consider, sir, that it may well be that
22 this is the -- that it was clearly Sir Ronnie Flanagan's
23 intention -- it was clearly his expressed view at the
24 time that his force was being unfairly pilloried.
25 We ask you to consider whether it is possible or
93
1 likely that Mr Langdon took this expression "unfairly
2 pilloried" and attributed it to the actions of the
3 family, and that that's why he has quoted as he has at
4 paragraph 3, because what's clear from the memoranda of
5 both Sir xxxxxxxxx and Mr Langdon was Sir Ronnie
6 recognised Mr Hamill was, in fact, murdered. This was
7 a murder, despite medical queries or suggestions to the
8 contrary.
9 It is further clear he would not tolerate the
10 presence of such an officer guilty of such an offence
11 within his police force. At document [39693], if that
12 could be brought up, and if the initial paragraph might
13 be highlighted, Mr Langdon's record is:
14 "If there were anything in these suspicions, then he
15 would do whatever was necessary; he did not want people
16 like that within a million miles of his force, but
17 nothing had happened to disturb his view of the incident
18 itself ..."
19 So his Ronnie's view at that stage was his force was
20 being unfairly pilloried, but this was a murder and he
21 didn't want anyone who had truc with that within
22 a million miles of his force. I say this expressed
23 intent was inconsistent with any suggestion he may have
24 attempted to repress evidence in any way.
25 The effect of the later allegations appear to be
94
1 that they suggest that Sir Ronnie has not been candid in
2 these two documents. They go on to say that his failure
3 to recollection 12 years later the meeting on 12th May
4 allows you to draw, in my respectful submission, a most
5 absurd inference. In a sense, sir, you identified it in
6 that there is not any direct evidence. We don't accept
7 this is a lie, but if it were, to use that on its own
8 without any further evidence is nothing more than
9 speculation. It would be nothing more than an attempt
10 to build bricks out of straw where there is perhaps not
11 even straw present.
12 I say that other matters that must be taken into
13 account when you address Sir Ronnie's motivation and his
14 intentions are, firstly, that it is not improper for
15 a chief constable to be defensive of the reputation of
16 his organisation. There have been suggestions in some
17 of the memos that Sir Ronnie Flanagan was defensive.
18 I say it is not improper to be defensive. What's clear
19 in both the memos is that Sir Ronnie Flanagan was not
20 afraid of there being a public inquiry. So he was
21 defensive of his force, but he was not defensive in
22 a manner where he was saying, "There ought not and never
23 should be a public inquiry".
24 When alerted to any issue that required his input,
25 Sir Ronnie acted decisively, and his motivation, in my
95
1 submission, was clear at all times. That was to ensure
2 transparent, effective investigation which would enjoy
3 the confidence of both communities in Northern Ireland.
4 I say this can be seen in his actions in June 2000.
5 Having been contacted by DCS McBurney, he springs into
6 action, if I can use that terminology. He contacts the
7 then and now Director of Public Prosecutions and the
8 ICPC.
9 It is more clearly perhaps evidenced in the evidence
10 of Mr David Wood from the Police Ombudsman's
11 organisation, a man who indicates in his evidence that
12 he worked frequently with Sir Ronnie Flanagan and who
13 indicates that Sir Ronnie took the Ombudsman's concerns
14 seriously, was proactive -- and this is at page 16 of
15 Mr Woods' evidence; unfortunately I don't have the
16 day -- and could not have done more to meet them. This
17 is referring to replacing Mr McBurney with
18 Colville Stewart.
19 That action in itself, sir, is significant. The
20 fact that Sir Ronnie replaced Mr McBurney with
21 Colville Stewart within 24 hours of the Ombudsman
22 raising it as an issue I say is a significant, positive
23 action that portrays his motivation, because it is clear
24 that this is a matter that of itself might draw
25 criticism to the organisation, the fact that the Chief
96
1 Constable is replacing an investigating officer in what
2 is a controversial -- in what is a case that has
3 attracted a great deal of publicity.
4 The other issue that you may consider whenever you
5 consider the actions of Sir Ronnie in replacing
6 Mr McBurney so swiftly is that this is clearly not --
7 this is not an action that would necessarily reflect
8 positively on Mr McBurney, and it may be portrayed in
9 certain sections as a slight or a negative slur.
10 If there were any suggestion that there was any
11 collusion between Sir Ronnie Flanagan and Mr McBurney,
12 well, this action of itself, the promptness and the
13 swiftness by which Sir Ronnie dealt with this in my
14 respectful submission can lead to no other inference
15 except that it was his intention at all times to ensure
16 an effective, transparent investigation, and that he had
17 no fear from replacing Mr McBurney, if there had been,
18 which we deny, any collusive purpose.
19 The evidence yesterday, sir, and the written
20 submissions from the BIRW refer to matters which are, in
21 my respectful submission, not evidence before this
22 Inquiry, and that's really the evidence about
23 Rosemary Nelson and the evidence about Colin Duffy.
24 British Irish Rights Watch raised the issue initially in
25 their written submissions about a dispute between
97
1 Sir Ronnie Flanagan and Mr Dato' Param Cumaraswamy, who
2 was at that time a UN rapporteur.
3 I say that's not evidence before this Inquiry and
4 ought not to be taken into account by the Inquiry, but
5 in any event that can be dealt with, in my respectful
6 submission, because the comment attributed to Sir Ronnie
7 by BIRW is inaccurate. The UN rapporteur removed the
8 comment from his report following Sir Ronnie having
9 denied it. The evidence heard by the Rosemary Nelson
10 Inquiry suggests that the comment in the draft report
11 was not supported by the contemporaneous note of the
12 meeting, and that, whatever comment was made, Sir Ronnie
13 was not even present in the room at the time.
14 So it is easy, in my respectful submission, in
15 a written submission to refer to a matter in another
16 inquiry and to suggest that it can be used to draw
17 a pejorative inference against someone, but really I ask
18 all of you to confine yourselves to the evidence which
19 is before the Inquiry.
20 Again I objected yesterday to some of the questions
21 being put to Sir Ronnie on the basis, amongst other
22 things, we had not been clearly alerted to them.
23 As regards Rosemary Nelson and Colin Duffy I don't
24 seek to rehearse all of the evidence in the
25 Rosemary Nelson Inquiry. That Rosemary Nelson was
98
1 a solicitor who acted for Republicans -- suspected
2 Republicans, that's well-known. That there were
3 a plethora of other solicitors in Northern Ireland who
4 acted for Republicans, that's also well-known. Saying
5 that does not take anyone any further.
6 Mr Duffy was charged initially with the murder of
7 two constables in July 2007 -- July 1997, which, of
8 course, is after this matter. The fact that
9 Rosemary Nelson wrote a letter of complaint on
10 7th May 1997, in my respectful submission her connection
11 with Colin Duffy doesn't take us any further as regards
12 any motivation
13 THE CHAIRMAN: Well, I see the time. We will adjourn now
14 until 2.05.
15 Mr McGuinness, you told us you would be about
16 an hour. I think you have had something like
17 three-quarters of an hour already. You are not even
18 halfway through your pages.
19 MR McGUINNESS: I am three-quarters of the way through, sir.
20 THE CHAIRMAN: You will be able to use the adjournment to
21 cut down what you have to say. Very well. 2.05.
22 (1.05 pm)
23 (The luncheon adjournment)
24
25
99
1 I N D E X
2
3
Closing submissions by MR ADAIR .................. 1
4 (cont.)
5 Closing submissions by MR McGUINNESS ............. 62
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
100
