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Transcript (Afternoon Session)
Hearing: 16th December 2009, day 76
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1 (2.05 pm)
2 Closing submissions by MR MCGUINESS (cont.)
3 THE CHAIRMAN: Yes, Mr McGuinness?
4 MR McGUINNESS: Sir, I hope to be brief and, in fact, be
5 brief.
6 THE CHAIRMAN: Good.
7 MR McGUINNESS: There are two significant issues that I want
8 to touch on finally. The first is the suggestion that
9 failure to suspend Reserve Constable Atkinson portrayed
10 a disinterest, and that that was a disinterest that
11 could be laid at the door of Sir Ronnie Flanagan.
12 First of all, that's a submission that's made on
13 behalf of the family in their written submissions,
14 although I say it is somewhat inconsistent, because they
15 go on to say that whether it was the deputy chief
16 constable or whether it was Sir Ronnie who was
17 responsible for suspending is neither here nor there,
18 but just for clarity, sir, what I say is the clear
19 evidence is that in British policing the standard
20 practice is that the deputy chief constable deals with
21 discipline.
22 THE CHAIRMAN: Yes, I suppose one would say that's
23 the deputy chief constable's job. In a glaring omission
24 one would expect the chief constable to intervene.
25 I am not suggesting there has been a glaring
1
1 omission, but I am merely saying the chief constable is
2 not without responsibility in an appropriate case.
3 MR McGUINNESS: No, I accept that, sir. It appears that it
4 is a bottom-up process. In a sense, the matter is
5 referred up from complaints and discipline to the ACC,
6 and then that's referred up to the DCC. Certainly, it
7 is not entirely clear when Sir Ronnie became so au fait
8 with the matter that he indicates in his evidence he
9 could not have sat as disciplinary chief constable,
10 though, in my submission, the inference is that that was
11 in and around June 2000. It would have been latterly
12 whenever he was giving the information to
13 Sir Anthony Langdon and, of course -- or
14 Sir xxxxxxxxx. But of course, at that stage, we
15 know, sir, that Reserve Constable Atkinson had been on
16 sick leave since September 1997. So I suggest that's
17 a matter that might be taken into account on that point.
18 The reply to the Secretary of State in
19 December 1997, it has been suggested, was brief.
20 I accept it is brief. That it was arguably misleading.
21 I don't accept, sir, that it is misleading, but
22 significantly Mr McGrory accepts that it arguably
23 fulfils the statutory obligation. So that, in a sense,
24 is my first port of call. The reply itself, in my
25 respectful submission, fulfils the statutory obligation.
2
1 There is a suggestion that the language has been
2 changed from the report of ACC White, which suggested
3 police officer, singular, to the eventual reply which
4 goes back from Sir Ronnie Flanagan to the Secretary of
5 State, but I say that that's dealt with very simply, and
6 the answer to that is that the reply -- Sir Ronnie's
7 reply in December 1997 mirrors the questions that are
8 asked by the letter of Diane Hamill
9 THE CHAIRMAN: He simply took the sub-headings in the
10 Secretary of State letter and gave the answer in respect
11 of each subheading?
12 MR McGUINNESS: That's exactly the point, sir. You will
13 remember the evidence of Mr Simon Rogers, and you will
14 remember the evidence of Mr John Steele being read.
15 Mr Steele was the administrative peak, he tells us in
16 his statement, of policing in Belfast. He is a man who
17 indicates -- I think it is at paragraph 2 or 3 or of his
18 statement -- that he happily or unhappily enjoyed the
19 trust of Dr Mowlam. So he really, in my respectful
20 submission, is the senior man, if I can use that term.
21 To suggest that the evidence of Simon Rogers
22 undermines his suggestion that the reply was both
23 appropriate and that Sir Ronnie could not have been
24 expected, or would not necessarily have been expected,
25 to provide the Secretary of State with any further
3
1 information, I say that Mr Rogers' reply no more says
2 than perhaps he could have been expected to give the
3 Secretary of State information.
4 This leads me on to a matter that I think my learned
5 friend Mr Underwood perhaps went too far yesterday in
6 making the suggestion to Sir Ronnie that Dr Mowlam had
7 an anti-RUC agenda. I don't want to --
8 THE CHAIRMAN: I don't think he made the suggestion. He was
9 making the enquiry.
10 MR McGUINNESS: What I say about that is that's not
11 supported by the evidence. The only evidence that there
12 appears as regards Dr Mowlam's -- there is no evidence,
13 in my respectful submission, from the transcript of
14 Simon Rogers' evidence or his statement that suggests
15 that Dr Mowlam had any particular agenda as regards the
16 RUC. So I say that you ought to disregard that and not
17 take that into account.
18 I don't -- I had intended to rehearse the quote of
19 Lord Nicholls referred to by Lord Carswell in the case
20 of Doherty, but I will not do that, sir. Mr Adair has
21 already done that
22 THE CHAIRMAN: This is on the burden of proof. I think you
23 can take it we are well acquainted with that.
24 MR McGUINNESS: What I do say finally is that, in my
25 respectful submission, it is clear that
4
1 Sir Ronnie Flanagan was not afraid and was not averse to
2 taking controversial and difficult decisions. That is
3 evidenced, amongst other places, in the report of
4 Professor McAvoy, who indicates that -- indeed, outlines
5 the nature of the fundamental review of the RUC
6 undertaken by Sir Ronnie Flanagan, the fact that that
7 underpinned a lot of the -- most of that was transported
8 or transposed on to the Patten report. The fact that
9 the fundamental review did not receive universal acclaim
10 Professor McAvoy puts down to the fact it was not
11 an independent review. So it would never, in
12 Northern Ireland, have obtained widespread acclaim and
13 that, in fact, the very independence of the
14 Patten Commission was the method that allowed for those
15 recommendations to be accepted.
16 He goes on to indicate that Sir Ronnie Flanagan
17 personally was resolute in the implementation of the
18 Patten recommendations. This is despite the pain that
19 it might cause to officers, if it meant -- and
20 Professor McAvoy quotes Sir Ronnie, "If it meant a new
21 beginning of policing."
22 So essentially, we say this is a further piece of
23 evidence that reflects the fact of the new policy to
24 refer all matters under Article 8. It reflects
25 Sir Ronnie Flanagan's motivation to address the concerns
5
1 that had been caused by virtue of the 1996 Drumcree
2 difficulties. His efforts to be transparent, but more
3 so to suggest that he would, therefore, be involved in
4 some sort of cover-up to protect the reputation of the
5 force flies in the face, in my respectful submission, of
6 his evidence or his voiced and his evidenced intentions,
7 because, as we all know, if that were the intention,
8 that, of course, could backfire spectacularly and would
9 destroy everything that he had sought to achieve at that
10 stage.
11 Finally, finally, as it has been said that his
12 character has been brought into account and you must
13 take note of it, I say that Mr McGrory is correct when
14 he describes him as a policeman of unparalleled
15 experience. The fact that he received the Knight Grand
16 Cross Order for implementing the significant changes
17 brought in by virtue of the Patten Report that's
18 changing the RUC into its new incarnation of the Police
19 Service of Northern Ireland, and the fact he was the
20 first person in Northern Ireland ever to be awarded
21 that, you must take into account his former position as
22 Chief Inspector of Constabularies, and taking all those
23 matters into account I say with confidence, hopefully,
24 sir, that you will find there can be no adverse
25 inference or comment arising out of the unsubstantiated
6
1 and speculative allegations that have been made or in
2 any other matter against Sir Ronnie Flanagan.
3 Unless there is anything else, sir, those are my
4 submissions
5 THE CHAIRMAN: Thank you very much, Mr McGuinness.
6 MR McGUINNESS: One final matter, sir. I don't know whether
7 Mr McGrory intends to come back on any matter. I would
8 like to be present obviously, if he did intend to do so.
9 THE CHAIRMAN: No, we are not having second bites at the
10 cherry. We will never stop if we do.
11 MR McGUINNESS: I am obliged for that indication, sir.
12 Closing submissions by MR EMMERSON
13 MR EMMERSON: Mr Chairman and members of the Panel, I want
14 to use the time which has been allocated to the PPS
15 primarily to respond to the criticisms that have
16 levelled at the former office of the DPP by Mr McGrory
17 for the Hamill family and by British Irish Rights Watch
18 and the Committee on the Administration of Justice.
19 I am going, if I may, to deal also with certain
20 other issues which have been floated by Mr Underwood in
21 his written closing submissions as possible areas of
22 concern. I have, in addition, to pick up one or two
23 short points which have been made by Mr Green on behalf
24 of Marc Hobson.
25 To keep my submissions as clear as I can, I am going
7
1 to divide them into ten substantive topics, which I am
2 going to take in broadly chronological order to reflect
3 the principal prosecutorial decisions made by the DPP's
4 office in the sequence in which they were made over the
5 seven-year period from 1997 to 2004.
6 Approaching the decisions in their proper
7 chronological order throws, we say, a rather different
8 light on some of the criticisms that have been made.
9 As I develop those submissions, I am going to refer
10 from time to time to contemporary documentation that's
11 on the system, but to avoid interrupting or lengthening
12 the flow of my submissions, I am not going to ask for
13 any of the documents to be displayed on the screen
14 unless the Panel wants them displayed, but I will, where
15 appropriate, give you page numbers for your note.
16 Mr Chairman, before I turn to develop our
17 submissions on the ten substantive topics that arise,
18 I want to make some general submissions first about the
19 terms of reference as they apply to the decision-making
20 processes within the office of the DPP.
21 The position of the DPP under the terms of reference
22 is unique amongst the interested parties and a little
23 complex. During the course of the hearings, the
24 Director has sought to offer the Panel the fullest
25 cooperation in providing an unprecedented degree of
8
1 insight into the decision-making process within his
2 office, but it does not, in our submission, follow from
3 that that every avenue which has been explored in
4 evidence necessarily falls within the terms of
5 reference.
6 The question whether a particular aspect or strand
7 of prosecutorial decision-making falls within the terms
8 of reference or not is obviously a matter to be decided
9 by the Panel in the light of the evidence and the
10 submissions of the parties.
11 So I want, if I may, to set out our position in the
12 clearest terms.
13 The point of departure is obviously the Secretary of
14 State's decision in his letter of 4th November 2008 not
15 to extend the terms of reference to encompass the
16 prosecutorial decisions of the office of the DPP, save
17 to the extent that those decisions can properly be said
18 on the evidence to have shaped the police investigation
19 into Robert Hamill's death.
20 Following the judicial review proceedings brought by
21 the Hamill family, the Secretary of State appears, we
22 say, to have been aiming to strike a compromise, which
23 would enable the Panel fully to examine all aspects of
24 the investigative process without subjecting the merits
25 of prosecutorial decision-making to a form of judicial
9
1 review.
2 The decision letter, therefore, made it clear that
3 where a prosecutorial decision had shaped the
4 investigation, then it would fall within the due
5 diligence limb of the terms of reference, but he also
6 made it clear that, even where an act or omission of the
7 DPP fell within the terms of reference, that did not
8 mean that it would then be open to the Inquiry to make
9 a determination of the merits of any prosecutorial
10 decision.
11 As I have indicated, it goes without saying that it
12 is for the Panel to determine where the precise boundary
13 is to be drawn in respect of any particular decision,
14 but the Secretary of State encouraged all parties to
15 cooperate in ensuring that the distinction was sensibly
16 and practicably drawn so as to ensure that the terms of
17 reference were properly applied to the acts and alleged
18 omissions of the DPP, and I am glad to say that at least
19 so far as myself and Mr Underwood are concerned, there
20 is a very substantial measure of agreement as to where
21 those lines are to be drawn
22 THE CHAIRMAN: I think there has only been one point at
23 which any submission has crossed the line, and that has
24 not been persisted in.
25 MR EMMERSON: Yes. I am going to obviously deal with the
10
1 substantive decisions themselves and we are going to
2 make our submissions about what is and what is not
3 within the terms of reference as I do so. Certain
4 criticisms appear at least to betray some confusion
5 about where the line is to be drawn, but perhaps I can
6 identify those as we go through.
7 Putting it at its very shortest, Mr Underwood and
8 I both say the terms of reference entitle and require
9 the Panel to determine whether the office of the DPP
10 properly equipped itself to make each prosecutorial
11 decision by enquiring whether the decision-maker
12 exercised due diligence in seeking to obtain all of the
13 relevant and available evidence and information which
14 was necessary to reach a properly informed decision.
15 We are also agreed that the terms of reference
16 neither require nor permit the Panel to express any
17 conclusion on the merits of prosecutorial
18 decision-making. In some instances -- and I am going to
19 touch on one or two of them -- that distinction is maybe
20 a little easier to state than it is to apply, and, as
21 I have said, some confusion appears to have crept in, in
22 particular in the submissions made by Mr McGrory.
23 We respectfully suggest that the matter can be
24 approached very clearly, and that, in considering any
25 alleged act or omission which is criticised, there are
11
1 three core principles to be applied and they are to be
2 applied with cumulative effect.
3 First, we say the Panel needs to determine whether
4 the particular act or omission in question shaped the
5 investigation, because obviously, if it didn't shape the
6 investigation, then it falls outside the terms of
7 reference altogether.
8 So, in our submission, it may be necessary for the
9 Panel to have at least a working definition of what is
10 meant by that word "shaped" in this context.
11 We say that a prosecutorial decision can only be
12 said to have shaped the investigation if, in consequence
13 of the decision, whether it be an act or omission,
14 further or other investigative steps should have been
15 taken.
16 Now, I recognise in saying that that the term
17 "shaped" is itself rather broad and ill-defined, but it
18 is difficult, in our submission, to think of any
19 decision which could be said to have affected the shape
20 of the investigation unless it could have led to the
21 adoption of different or further lines of enquiry by the
22 police. That, we submit, is the shape of the
23 investigation. So that's the first point
24 THE CHAIRMAN: It is right, isn't it, Mr Emmerson, that it
25 may sometimes be better to ask first: did this decision
12
1 shape the investigation? If it didn't, then it is not
2 appropriate to enquire whether the office of the
3 Director properly equipped itself to make the decision.
4 MR EMMERSON: Yes. For reasons I will come to, the two are
5 very closely aligned, but we would respectfully submit
6 that the right order is to ask that question first,
7 which is why I have put it first in the three.
8 Secondly, sir, we say where a decision is found to
9 have shaped the investigation, then the question for the
10 Panel is whether the DPP and his staff exercised due
11 diligence in the sense I have outlined, ie that they
12 took all steps which could reasonably have been expected
13 of them, in the circumstances as you find them to have
14 been, properly to inform themselves of the evidence and
15 information necessary to make a fully informed
16 prosecutorial decision.
17 So in its application to the DPP we say that the due
18 diligence test requires the Panel to ask itself whether
19 a reasonable prosecutor would have been bound to advise
20 or direct the police to carry out the particular further
21 enquiry which is alleged into any particular aspect of
22 the case.
23 The third core principle, which is, if I can put it
24 this way, the longstop question that the Panel must ask
25 itself is whether any particular criticism that is
13
1 alleged would fall foul of the principle that the merits
2 of prosecutorial decisions, that is decisions whether or
3 not to prosecute, or for what offence, or whether to
4 discontinue, fall outside the terms of reference.
5 Now under this I just want to touch on one aspect of
6 it, if I may. It is common ground, I think, between all
7 parties, and from interjections, I suspect, also with
8 the Panel, that it is not open to the Panel to determine
9 whether a decision made by the DPP was right or wrong on
10 its merits in the sense of asking whether the Panel
11 would have reached the same decision if it had been the
12 primary decision-maker, but there is one area in which
13 the submissions of Mr Underwood and those of the PPS
14 differ in emphasis under this head.
15 Mr Underwood suggests that if any particular
16 prosecutorial decision could be stigmatised as
17 irrational in the Wednesbury sense, that is as
18 a decision which no reasonable prosecutor could have
19 reached on the merits, then it would, in principle, be
20 open to the Panel to say so in its report.
21 We do not agree with that proposition. We
22 respectfully submit that it would fall foul of the
23 principle that the terms of reference do not permit
24 a determination on the merits.
25 THE CHAIRMAN: I suppose this might be right, that if,
14
1 without saying so, we considered a decision was
2 Wednesbury unreasonable, that would cause us to look
3 with greater care to see whether the old DPP had
4 properly equipped itself.
5 MR EMMERSON: Precisely so, and that would be, in our
6 submission, an entirely correct approach, but a finding
7 in the report that a particular decision was irrational
8 or Wednesbury unreasonable we say would be just as much
9 a determination of the merits as a finding that it was
10 simply wrong.
11 We say if the Secretary of State had intended the
12 Panel to review prosecutorial decision-making on a
13 Wednesbury standard, then he plainly would not have
14 excluded the merits of prosecution decisions from the
15 terms of reference.
16 That said, we are in agreement with Mr Underwood
17 that it is not necessary for the Panel to resolve the
18 difference of approach between us, because it doesn't
19 arise for determination on the evidence. We say that
20 for two reasons.
21 Firstly, because the process by which each
22 prosecutorial decision was reached has been fully
23 exposed to scrutiny by the Inquiry. That's the point,
24 Mr Chair, you have just put to me. If there is any flaw
25 in that process amounting to a lack of due diligence in
15
1 the sense that the Director failed properly to inform
2 himself, then the Panel is fully equipped to identify
3 that flaw.
4 All of the decisions relevant to the murder
5 prosecution, the neglect of duty file and the
6 tipping-off allegation first time round against Reserve
7 Constable Atkinson have been explained in great detail
8 in Mr Kitson's second witness statement, and we would
9 obviously commend that to you for careful re-reading
10 when looking at the role of the DPP, and you have heard
11 extensive evidence from all of those who contributed to
12 the Director's decision to discontinue the prosecution
13 of Reserve Constable Atkinson and others for conspiracy
14 to pervert the course of justice, and you have heard
15 from the Director himself.
16 So to the extent that it is alleged that the DPP's
17 office failed properly to inform itself of relevant
18 evidence before making a decision, you are in a position
19 to evaluate that criticism with the benefit of
20 a complete account of the reasoning process which was
21 adopted.
22 The second reason why the issue is purely academic
23 is that, as we submit, there is no evidence on which any
24 prosecutorial decisions in issue could properly be
25 characterised as unreasonable in the Wednesbury sense.
16
1 Again, we understand ourselves to be in agreement with
2 Mr Underwood on that issue.
3 At the directions hearing in front of the Chair
4 Mr Underwood pointed out that no party to the Inquiry
5 had even suggested in their written submissions that any
6 prosecutorial decision fell into the Wednesbury
7 category, and that was certainly correct at the time the
8 submission was made as a reflection of the written
9 submissions of the parties, but in his closing oral
10 submissions last week Mr McGrory appeared at one point
11 to be going further than his written submissions and to
12 be making the tentative suggestion that the decision to
13 discontinue the prosecution of Reserve Constable
14 Atkinson might be stigmatised as Wednesbury unreasonable
15 in the Panel's report.
16 Now if that submission is maintained, then we
17 strongly disagree with it, but, as we understood
18 Mr McGrory's position, he withdrew the suggestion when
19 you, Mr Chairman, pointed out to him that it fell foul
20 of the principle that the merits of the decision were
21 outside the terms of reference.
22 That, we say, is the basic framework. Can I move
23 now just to say a few words about how we say those
24 principles apply to the categories of decision that were
25 taken by the DPP in this case?
17
1 For that purpose, we say there are really three
2 different types of act or omission which are in issue.
3 First, there are directly alleged failures by the
4 DPP to advise or direct the police or the Forensic
5 Science Service to obtain further evidence where it is
6 said we should have asked more questions or obtained
7 more evidence than we did.
8 Now, as to those allegations, I can make it
9 absolutely clear that it is common ground, and we
10 accept, that if an allegation in that category were to
11 be upheld, then that would satisfy the first requirement
12 of the terms of reference, that it must have shaped the
13 investigation. Almost by definition a culpable failure
14 by the office of the DPP to advise or direct the police
15 that they should obtain additional evidence would have
16 affected the shape of the police investigation, because
17 it would be implicit in the finding of a culpable
18 failure that further lines of enquiry should have been
19 pursued, but nonetheless, in applying the due diligence
20 test in the context of that type of criticism, there are
21 two matters which we respectfully submit the Panel ought
22 to bear in mind.
23 First, the investigation and prosecution of criminal
24 offences is a multi-disciplinary exercise. Before it
25 can be decided whether the DPP exercised due diligence,
18
1 it is first going to be necessary to determine whether,
2 the office of the DPP was, in the particular
3 circumstances, under a duty to advise or direct that
4 a particular line of enquiry be pursued or a particular
5 item of evidence be obtained, and that's going to
6 depend, we say, on a proper allocation of responsibility
7 between the different agencies involved. So in the case
8 of the Stacey Bridgett blood spot, for example, we
9 suggest -- and I will come to this in more detail
10 a little later -- that the DPP was fully entitled to
11 rely on the expertise of Lawrence Marshall in
12 determining what tests and expertise were required by
13 the circumstances. That's a distribution of
14 responsibility point.
15 More generally, we say that in assessing criticisms
16 of this kind it is going to be important for the Panel
17 to distinguish between the investigative
18 responsibilities of the police and the prosecutorial
19 responsibilities of the DPP.
20 Now, it obviously goes without saying that in
21 certain circumstances the DPP will come under a duty to
22 advise or direct the police to obtain additional
23 evidence, where that's necessary, to enable an informed
24 prosecutorial decision to be made. If an obvious
25 item of evidence necessary to prove an essential element
19
1 of an offence has been overlooked, then one would expect
2 a reasonable prosecutor to point that out and to take
3 steps to remedy it.
4 There are a number of examples of that happening in
5 the evidence, quite rightly, but the question whether in
6 any particular instance the DPP was under a duty to give
7 advice or to issue an interim direction must, we say, be
8 approached with the division of functions between the
9 police and the DPP firmly in mind
10 THE CHAIRMAN: Of course, you may get a case in which the
11 actions of the office of the Director are such as to
12 say, "Well, in this instance it has assumed the role".
13 I am not saying -- that's a possibility.
14 MR EMMERSON: Can I just take that point and develop it
15 a little? We say the starting point obviously is that
16 investigation is for the police and prosecution is for
17 the DPP, but it is necessary just to descend into
18 a little greater detail really in answer to the point
19 that you have just put to me.
20 There are, we say, two particular aspects of this
21 distribution of competence which touch on where the
22 line is properly to be drawn.
23 The first relates to Article 6.3 of the Prosecution
24 of Offences (Northern Ireland) Order 1972. You may
25 remember this has been described in some of the written
20
1 evidence, in particular in Mr Kitson's witness statement
2 and the Director's.
3 If no prosecution investigation is underway, then
4 the DPP have the power under Article 6.3 to request the
5 chief constable to investigate any matter which had come
6 to his attention which appeared to involve the
7 commission of a criminal offence, but where, as was the
8 position here, a police investigation was already being
9 undertaken, then in the manner in which it was
10 understood to be applied Article 6.3 had no role to
11 play.
12 The point has been raised specifically in relation
13 to the investigation of the tipping-off allegation
14 against Reserve Constable Atkinson. I am going to come
15 back, as I say, to that allegation a little later in my
16 submissions, but for the present I just want to point
17 out the DPP's office was repeatedly informed, from the
18 13th May meeting onwards, that the allegations against
19 Atkinson were being investigated by the police, by
20 senior police officers overseen by the chief constable's
21 office, and that a police investigation file was going
22 to be submitted when the investigation was complete.
23 So there was, we say, no question here of the DPP having
24 grounds to invoke Article 6.3. That is a red herring.
25 The second point I want to make about the division
21
1 of function between the police and the DPP is that there
2 is an important distinction to be drawn between the
3 duties resting on the DPP prior to the receipt of
4 a police investigation file and the duties resting on
5 the office once that file had been received.
6 Up until the point at which a police file was
7 submitted, the conduct of the investigation was
8 understood to be a matter for the police and it was for
9 the police to decide on specific lines of enquiry.
10 Now, you have heard that there would be occasions on
11 which the police would seek prosecutorial advice at
12 an early stage of an investigation, but in 1997 this was
13 something which happened on a fairly infrequent basis
14 and was certainly not routine. The circumstances in
15 which it might happen are addressed in the evidence and
16 in our written submissions, but one instance in which
17 the police would consult with the DPP at a relatively
18 earlier stage would be where persons charged with
19 serious offences were likely to apply for bail, and it
20 was necessary for the DPP to be fully briefed on the
21 case in order to decide whether and how to resist a bail
22 application.
23 Now, obviously, as a general rule, in a meeting
24 about bail the flow of information is going to be from
25 the police to the DPP. It is the DPP seeking to be
22
1 informed of the state of the evidence, but there may be
2 occasions where it becomes necessary for the DPP to
3 advise the police in a bail consultation to seek further
4 evidence in order to support a continued remand in
5 custody, and we accept, of course, and this is really
6 the direct answer to the Chairman's point, that where
7 that happens, then the DPP is obliged to exercise due
8 diligence
9 THE CHAIRMAN: I think it may be a bit like trying to define
10 a horse. Difficult, but we all know a horse when we see
11 one.
12 MR EMMERSON: Exactly, sir.
13 THE CHAIRMAN: It is much easier to recognise the concrete
14 circumstances in which a duty arises than to try to
15 define it.
16 MR EMMERSON: Yes. We saw an example, really, of that sort
17 of advice in the 13th May meeting where Mr Kitson
18 suggests that, in view of the doubts which at that time
19 subsisted about the cause of Mr Hamill's death, it was
20 going to be necessary for Mr McBurney to obtain
21 a post-mortem report from Mr Crane. As he told you,
22 that's because the report was going to be relevant as to
23 whether a continued remand in custody could be
24 justified. If the cause of death could not be
25 attributed to the assault, then obviously it was going
23
1 to be very difficult for the DPP to continue to resist
2 applications for bail. You will find that in
3 Mr Kitson's second statement at paragraph 14.
4 THE CHAIRMAN: Yes.
5 MR EMMERSON: So we accept that where such situations arise,
6 of course there is an obligation of due diligence, but
7 that does not imply that the DPP accepted responsibility
8 for the ongoing conduct of the police investigation.
9 Any advice offered by the DPP prior to the receipt of
10 a police file is going to be strictly prosecutorial in
11 nature. It is going to be related in one way or another
12 to the functions that the DPP has to exercise.
13 The important point, Mr Chairman, is that in this
14 jurisdiction in particular it was understood by all
15 concerned that the DPP was, and needed to be, thoroughly
16 independent, and seen to be thoroughly independent, of
17 the police investigative process. It was then and
18 remains now the Director's view that public confidence
19 in the independence of his office and the impartiality
20 of decisions taken by his staff is best maintained by
21 preserving the clear separation of functions between the
22 chief constable and the Director.
23 Now, you heard evidence on this from the Director
24 himself, from the former Chief Constable,
25 Sir Ronnie Flanagan, the former Assistant Chief
24
1 Constable Raymond White, whom you may recall using the
2 memorable phrase "a firewall", and the former Assistant
3 Director of Public prosecutions, Mr Kitson.
4 They all really said the same thing, that
5 operational responsibility for police investigations
6 rested with the chief constable and not the DPP, and
7 that all concerned respected the division of
8 responsibility and operated within the clear
9 understanding that it was not the role of the DPP to
10 direct a police investigation.
11 Mr Chairman, once the police investigation file had
12 been received inside the DPP's office, it then, of
13 course, became the duty of the DPP to reach decisions on
14 whether or not to prosecute a suspect and, if so, for
15 what offence, and if in the course of making that
16 decision it became apparent that further information or
17 evidence was necessary to enable a fully informed
18 decision to be made, then the office of the DPP would
19 come under a duty to issue an interim direction to the
20 police in writing asking them to take the necessary
21 steps, and in the Robert Hamill case the directions you
22 have been told were sent not only to the investigating
23 officers, but also to the RUC Crime Department for
24 supervision by the chief constable's office.
25 So when the Panel is considering allegations in this
25
1 first category of complaint, that the DPP ought to have
2 advised or directed the police to obtain further
3 evidence, it is, in our submission, important that that
4 context be borne in mind. So we say that's the
5 framework against which to evaluate such allegations.
6 The second category of prosecutorial decisions in
7 issue here are what I have called ultimate prosecution
8 decisions in our written submissions; that is to say,
9 final decisions either to prosecute an individual or not
10 to prosecute him, or to prosecute him for one offence or
11 another, or to discontinue a prosecution once begun.
12 We say that ultimate prosecution decisions of that
13 nature fall outside the terms of reference altogether,
14 firstly, because it is impossible to determine that they
15 shaped the police investigation into Robert Hamill's
16 death, so they fall, we say, at the first hurdle, and,
17 secondly, because the criticisms which are made go to
18 the merits of what are purely prosecutorial decisions,
19 so they fail at the third hurdle.
20 In my submission, that applies to the ultimate
21 decisions to discontinue the murder prosecutions against
22 Forbes, Hanvey, Robinson, Lunt and Bridgett, the
23 decision to prosecute Hobson for murder, the decision
24 not to prosecute the Land Rover officers for neglect of
25 duty, the decision not to prosecute Atkinson for the
26
1 tipping-off allegation first time round, the decision to
2 discontinue the later prosecution of Atkinson and others
3 for conspiracy and the decision not to prosecute
4 Timothy Jameson for murder. All of those, we say, as to
5 their merits, fall outside the terms of reference. It
6 is, I repeat, of course open to the Panel to determine
7 whether the Director properly informed himself of the
8 necessary evidence before making each of those
9 decisions, but the merits of the decisions themselves
10 fall outside your terms of reference.
11 Can I just take what might perhaps, in some people's
12 view, be the most controversial example; the decision to
13 discontinue the prosecution of Reserve
14 Constable Atkinson and others for conspiracy to pervert
15 the course of justice?
16 I am going to deal with the evidence about that in
17 considerable detail in due course, but we say it would
18 be quite wrong for the Panel to find that that decision
19 shaped the continuing investigation into Robert Hamill's
20 murder. The only basis that has been floated for
21 suggesting that that finding is open is the speculative
22 proposition that if Atkinson had been prosecuted to
23 conviction, then he might have given evidence against
24 Hanvey. Mr McGrory in his oral submissions to you quite
25 rightly accepted that that was a matter of speculation.
27
1 The way he put it was, though, that it was not beyond
2 the bounds of possibility.
3 Well, that may or may not be right, but there is ,
4 in our submission, no positive evidence at all on which
5 the Panel could properly reach a finding that Reserve
6 Constable Atkinson was likely, if convicted, to have
7 agreed to give evidence against Hanvey. Of course,
8 anything might have happened, but this suggestion is
9 really, we say, nothing more than a contrived means of
10 arguing that the decision to discontinue the prosecution
11 might somehow have shaped the murder investigation and,
12 therefore, might somehow fall within the terms of
13 reference. We say it clearly doesn't
14 THE CHAIRMAN: I wonder if another way of looking at it is
15 to say that that might have triggered an entirely
16 separate investigation, but that is not shaping the
17 investigation in relation to which the decision is being
18 made?
19 MR EMMERSON: Precisely so. It may be there would be other
20 investigations into other matters, but it was not going
21 to shape the murder investigation, but, Mr Chairman,
22 even if the Panel were against us on that and were to
23 accept that the decision somehow shaped the murder
24 investigation, it would still, we say, be outside the
25 terms of reference to reach any decision on the merits
28
1 of the DPP's approach.
2 THE CHAIRMAN: Oh, yes.
3 MR EMMERSON: The third and final category -- and this is
4 rather a loose category -- of act or omission which has
5 been criticised is what we have identified in our
6 written submissions as subsidiary prosecution decisions,
7 that is to say decisions taken in the course of
8 a prosecution which are neither decisions whether or not
9 to advise further lines of enquiry, nor ultimate
10 decisions whether or not to prosecute. There are,
11 I think, only two examples on the evidence: the decision
12 not to seek to adduce the witness statements of
13 Tracey Clarke or Timothy Jameson under Article 3 of the
14 1988 order; and the disclosure decisions which were
15 taken in the course of the Hobson prosecution.
16 As to the first of those, we submit that it is only
17 if and to the extent that the DPP is accused of failing
18 to make necessary enquiries before reaching the decision
19 about Article 3 that the terms of reference bite on it
20 at all. Mr McGrory has made the submission that the DPP
21 ought to have obtained better evidence of fear to
22 support the Article 3 application. I will come back to
23 that suggestion on its merits when I deal with the
24 substantive criticisms. That, of course, is a criticism
25 which, if well-founded, would fall within the terms of
29
1 reference, but that point aside, we say that the merits
2 of the DPP's decision not to invoke Article 3 fall
3 outside the terms of reference
4 THE CHAIRMAN: It would have to be shown that he failed to
5 take into account some relevant factor in making
6 a decision not to resort to Article 3.
7 MR EMMERSON: I pause at this point --
8 THE CHAIRMAN: I am not saying there is evidence. That
9 would be a pre-condition.
10 MR EMMERSON: I pause at this point, because there may be
11 a difference between failing to take account of
12 a relevant factor and failing to direct further
13 enquiries. I mean, it may be, for example, that -- we
14 come to one example of this, I think only one, in which
15 the distinction may be important, and that's the
16 res gestae point, where it might be said, for example,
17 and taking it away from any particular example in the
18 case, you can have a prosecutorial decision where it
19 might be said that the decision-maker overlooked
20 a relevant consideration. It wouldn't necessarily
21 follow, in our submission, that that shaped the
22 investigation.
23 If the relevant consideration was further evidence
24 that ought to have been obtained by further
25 investigation, then clearly it would have shaped the
30
1 investigation, but if it were, for example, overlooking
2 a statutory requirement or some factor that did not
3 depend on investigation, then it wouldn't, as we submit,
4 have shaped the investigation, but subject to that
5 caveat, I agree with what has just been put to me.
6 Turning to the disclosure decisions in the Hobson
7 prosecution, we say that, as the evidence emerged, it
8 became clear that there is nothing in the point, and
9 neither Mr Underwood nor any interested party has urged
10 any criticism of the DPP on the issue, but even if they
11 had done, it is very difficult indeed to see how any
12 criticism associated with the disclosure process in the
13 Hobson trial could have been brought within the terms of
14 reference in the first place
15 THE CHAIRMAN: It has to do with the prosecution.
16 MR EMMERSON: Yes, and it has nothing to do with shaping the
17 investigation.
18 THE CHAIRMAN: I'm not saying that means it is
19 a prosecutorial decision, but it simply relates to the
20 conduct of the prosecution, not to the investigation.
21 MR EMMERSON: Precisely, sir.
22 THE CHAIRMAN: Yes.
23 MR EMMERSON: Mr Chairman, those are the general submissions
24 I want to make about the terms of reference.
25 I am going to turn now, if I may, to the ten
31
1 individual prosecutorial decisions which arise. During
2 the course of what I have to say, and, of course,
3 subject to your direction, I am not going to confine
4 myself religiously to those matters which we say fall
5 squarely within the terms of reference, partly because
6 the Panel has yet to reach final determinations on those
7 questions of the terms of reference, but partly because
8 quite a lot of criticisms have been made during the
9 evidence and submissions, in public, which I should
10 respond to, even if they don't, strictly speaking, fall
11 squarely within the terms of reference. It would be
12 wrong for me, on behalf of the PPS, to leave those
13 criticisms which have been aired in public unanswered,
14 but I obviously won't take a disproportionate amount of
15 time with them.
16 Can I turn now to the ten decisions which have been
17 brought in issue or criticised? Of course, the first
18 subject I need to deal with is the DPP's decision in
19 October 1997 not to seek to adduce the statement of
20 Tracey Clarke under Article 3 of the 1998 order.
21 We say, of course, that in the light of
22 Tracey Clarke's stated reasons for refusing to testify,
23 there was no realistic prospect of a successful
24 Article 3 application. We note Mr Underwood expresses
25 much the same conclusion in his written submissions.
32
1 What must be proved to make an Article 3
2 application? Well, the threshold tests under Article 3,
3 as you have heard, require the prosecution to prove
4 beyond reasonable doubt that the reason why the person
5 who made the statement is not willing to testify is
6 because they are in fear of the consequences.
7 Mr Kerr, Queen's Counsel, explained in his testimony
8 to the Inquiry that required the prosecution to put
9 forward to the trial judge both subjective evidence in
10 the form of a statement from the witness herself that
11 she is not prepared to give evidence because she is in
12 fear and objective evidence in the form of a threat
13 assessment from the police or other independent source
14 establishing that there are reasonable grounds for the
15 fear. So a two-stage test.
16 He went on to suggest to you that where a witness
17 had mixed motives, in his experience it would be very
18 difficult for the prosecution to discharge the burden of
19 proof beyond reasonable doubt.
20 What about Tracey Clarke's reasons? It is quite
21 clear, and there is no dispute here, that there was
22 background information suggesting that Tracey Clarke
23 might come under pressure to withdraw her statement.
24 That's the reason why her statement was anonymised in
25 the first place, but that is a very far cry from the
33
1 sort of evidence necessary to justify an application
2 under Article 3.
3 When she was seen in consultation on 17th October,
4 her express reason for refusing to testify was that she
5 loved Hanvey and that the others were her friends. You
6 have seen Roger Davison's note of the consultation at
7 page [17591].
8 During his oral submissions Mr McGrory placed great
9 significance on the fact that the note records she and
10 her family were very worried about the possibility of
11 attack by Loyalist paramilitaries, but the evidence of
12 those present at the consultation is clear that the
13 reference to fear came only from the parents and that
14 Miss Clarke's only stated reasons were love and loyalty.
15 Mr Kerr recorded that in terms in his written
16 opinion drafted at the time, which is page [17634]. In
17 his statement and evidence to the Inquiry he said that
18 he had asked her directly whether she was in fear and
19 that she had expressly denied to him that that was her
20 reason for refusing to testify. That will be in his
21 statement [81412] at paragraph 11. His clear
22 recollection was that she had said her reasons were not
23 related to fear, and, as he pointed out in his written
24 opinion, if the evidence had enabled him to make
25 an Article 3 application, then he would have done so.
34
1 Mr Davison confirmed Mr Kerr's recollection. From
2 reading his own note he told the Inquiry in his opinion
3 the grounds for an Article 3 application could not be
4 made out. He said that it was his impression that the
5 question of fear was raised only by Miss Clarke's
6 parents and that the primary reason Miss Clarke herself
7 had given for refusing to testify was her love of
8 Hanvey. He also said that it was clear to him that she
9 would not have been willing to sign a witness statement
10 saying that she was in fear, which would, of course,
11 have been a pre-requisite for an Article 3 application
12 THE CHAIRMAN: Unless the statute says it, I am not sure as
13 a matter of law you would in all cases require a witness
14 statement signed by the witness. One can envisage
15 a case in which a witness is so terrified as to be
16 incapable of making any statement, but I am not
17 suggesting that's this case. I am merely simply saying
18 that the bald proposition that there has to be
19 a statement from the witness may go too far.
20 MR EMMERSON: What the evidence shows is there has to be
21 subjective evidence from the witness that is her reason
22 for not testifying.
23 THE CHAIRMAN: But that may be apparent from observation.
24 MR EMMERSON: I accept that could be an oral statement.
25 THE CHAIRMAN: Or even observation.
35
1 MR EMMERSON: Or even potentially observation.
2 THE CHAIRMAN: As I say, that's not this case, but I am
3 simply questioning the universal application of the
4 proposition Mr Kerr put forward.
5 MR EMMERSON: I think to this extent there is absolutely no
6 disagreement, that there must be some subjective
7 evidence emanating from the person concerned, and on
8 that basis we say that this application would have
9 failed at the very first hurdle. The prosecution just
10 were not in a position to adduce subjective evidence
11 from the witness that she was motivated by fear and so
12 no question of obtaining objective evidence would ever
13 have arisen.
14 In his composite closing submissions at [993]
15 Mr Underwood says he thinks it unlikely that a judge
16 would have admitted the statement under Article 3. We
17 go further and say it is inconceivable in the light of
18 Tracey Clarke's clearly stated position in the
19 consultation.
20 I should just respond briefly to something that was
21 raised by Mr McGrory, because rather than dwelling on
22 the evidence of Mr Kerr and Mr Davison, Mr McGrory
23 relied on the evidence of Detective Superintendent
24 Cooke, who also attended the consultation with
25 Tracey Clarke. He relies in particular on the fact in
36
1 his statement to the Inquiry Mr Cooke said that he
2 believed Tracey Clarke had given fear as one of her
3 reasons for not testifying.
4 You may remember, sir, that under cross-examination
5 by me Mr Cooke accepted that he was in effect reliant on
6 Mr Davison's note for his recollection of the meeting.
7 He said he had no independent recollection whatsoever of
8 whether it was Tracey Clarke or her parents who had
9 mentioned fear, and he accepted in terms that he was not
10 in a position from his own recollection to contradict
11 the passage from Gordon Kerr's opinion dealing with this
12 question which was put to him in cross-examination, and
13 that passage, of course, records in terms that the
14 question of fear was not raised by Tracey Clarke and
15 indeed denied by her.
16 THE CHAIRMAN: Well, in any event you cannot just cherrypick
17 the evidence. You have to look at the totality of the
18 evidence if you are asking whether the Director was
19 properly informed.
20 MR EMMERSON: Yes, but insofar as there is a conflict of
21 evidence, given that this witness had no notes of his
22 own and no recollection independent of Mr Davison's
23 note, whereas both of the other witnesses had their own
24 contemporaneous records, including Mr Kerr's opinion, we
25 would invite you to prefer Mr Kerr and Mr Davison over
37
1 Mr Cooke.
2 The final decision on the Article 3 issue fell to
3 Mr Kitson in the course of assessing the strength of the
4 case against Forbes, Hanvey and Robinson. He explained
5 in the course of his second statement to the Inquiry how
6 he reached the Article 3 decision. He said he discussed
7 the possibility with Mr Kerr during a conversation on
8 27th October. He said he agreed with Mr Kerr's reason
9 that Tracey Clarke's stated grounds would have prevented
10 an Article 3 application, because the statutory
11 threshold test could not be met.
12 Mr Kitson went further than Mr Kerr and considered
13 whether, even if the test had been met, a judge in this
14 jurisdiction would have felt it right to admit the
15 statement in the interests of justice. Where
16 a statement has been taken for the purposes of
17 a criminal prosecution, then there is a statutory
18 presumption against its admission, because Article 3
19 takes effect subject to Article 6, and Article 6
20 provides that a statement like Miss Clarke's 10th May
21 statement is not to be admitted unless the prosecution
22 establishes to the satisfaction of the judge that its
23 admission is necessary in the interests of justice.
24 Mr Kitson's view was that Tracey Clarke's statement was
25 so central to the case against Forbes, Hanvey and
38
1 Robinson that a judge in Northern Ireland would have
2 been most unlikely to admit it under Article 3, even if
3 the threshold tests had been met, and that additional
4 consideration was reflected in the Director's letter to
5 the Attorney of 10th December.
6 Can I deal now with Mr McGrory's submission that the
7 DPP failed to take adequate steps to inform himself of
8 the evidence which might have been available to support
9 an application under Article 3?
10 He accepted that the investigation of any objective
11 evidence of fear was a matter for the police, and he
12 didn't seek to criticise the DPP on that score. In the
13 end in answer to a question from you, Mr Chairman, his
14 submission came down to a suggestion that the DPP should
15 have directed that a statement be taken from
16 Tracey Clarke saying that she would not give evidence
17 through fear. That was the submission, that the matter
18 should have been investigated further with her on the
19 direction of the DPP with a view to taking a statement.
20 He agreed with the proposition that that was in the
21 end the only criticism he could level against the DPP
22 under this rubric at all. As I have already pointed
23 out, though, Mr Davison gave evidence on the point in
24 terms when he told you that it was quite clear that
25 Tracey Clarke would not have been prepared to sign
39
1 a statement saying that she was in fear precisely
2 because she was aware that that would lead to her
3 evidence being adduced in written form.
4 So, Mr Chairman, there is we say in short nothing in
5 the criticisms of the DPP concerning the decision not to
6 seek to adduce the 10th May witness statement.
7 For the sake of completeness I should deal very
8 briefly with the suggestion made by British Irish Rights
9 Watch that the DPP was somehow at fault in not seeking
10 to adduce the statement of Timothy Jameson under
11 Article 3.
12 Obviously during the course of Jameson's
13 21st October consultation he had withdrawn the
14 statement, saying that it consisted of suggestions which
15 had been put to him by the police. No-one believed him,
16 but that's for these purposes beside the point. As
17 Mr Kerr pointed out in his opinion, there was no
18 prospect of invoking Article 3 in Timothy Jameson's case
19 and it would in any event have been completely improper
20 to invoke Article 3 where the person who made the
21 statement was no longer prepared to stand over it and
22 had given a lying explanation about how it had come to
23 be made.
24 The only other means by which the evidence of
25 Tracey Clarke and Timothy Jameson could have been
40
1 deployed at all was by compelling them to testify. Both
2 were compellable witnesses as a matter of law.
3 Mr Kitson went to very considerable lengths, as you have
4 heard, with the assistance of the police to determine
5 whether there was any prospect that Tracey Clarke would
6 testify for the prosecution if steps were taken to
7 summons and compel her.
8 He spoke to Mr Kerr and Detective Inspector Irwin
9 about it on 27th October. He asked Mr Irwin to make
10 enquiries with P39 and with his senior officers. He
11 spoke to Detective Superintendent Cooke himself, and all
12 were agreed that Tracey Clarke would never testify for
13 the prosecution no matter what sanctions were applied to
14 her. Those conversations are dealt with in Mr Kitson's
15 second witness statement and recorded in detailed file
16 notes dated 27th and 28th October, which are at
17 pages 18343 and [18345].
18 It was perhaps rather obviously unnecessary to make
19 any similar enquiries with regard to Timothy Jameson.
20 As Mr Kerr put it in his statement to the Inquiry,
21 compulsion was irrelevant in Jameson's case, because
22 Jameson was claiming that his statement had been made up
23 by the police. There was no point in compelling, said
24 Mr Kerr, a witness who was clearly incredible.
25 That is, Mr Chairman, all I want to say about the
41
1 Article 3 issue and the evidence of Tracey Clarke and
2 Timothy Jameson.
3 I will leave it just to you, sir, to indicate when
4 you would like a break.
5 THE CHAIRMAN: Yes. You say in any event this was not
6 a decision that shaped any investigation.
7 MR EMMERSON: I do. You will see, sir, that this is one
8 example -- I don't think it would be right for me to
9 leave the criticisms unanswered, even though we have
10 a short answer to them in that terms of reference point.
11 I hope you will bear with me to that extent.
12 THE CHAIRMAN: Yes. Very well.
13 MR EMMERSON: The second prosecution I want to touch on in
14 a sentence or two is the next and consequential decision
15 made by Mr Kitson on 29th October to direct no
16 prosecution of Forbes, Hanvey and Robinson and the
17 reasons for that decision. No-one has criticised
18 Mr Kitson on this score, and it is easy to see why.
19 Once it became clear that the prosecution could not rely
20 on the evidence of Clarke or Jameson any longer, the DPP
21 had no choice but to move swiftly to direct no
22 prosecution against those three men, who had each of
23 them already been in custody for six months.
24 The case against each of them depended on the
25 evidence of Clarke and Jameson, and, as Ms Winter for
42
1 British Irish Rights Watch accepted last week, it would
2 have been unlawful for the DPP to continue with the
3 prosecution of any of them for murder once those two
4 witnesses were no longer available.
5 Now the importance of this point, which may seem
6 a rather obvious one, comes into much sharper focus when
7 we go on to consider the suggestion that the DPP was
8 somehow at fault for failing to wait for the tipping-off
9 file to come in before taking a final decision on the
10 prosecution of Hanvey.
11 I am going to deal with that as a separate topic
12 later on, but I simply want to emphasise at this point
13 that the DPP was obliged to make the decision on
14 Allister Hanvey when he did, and he was obliged to
15 decide it as he did, because there was no longer
16 a reasonable prospect of conviction which could have
17 justified the prosecution being maintained at that
18 stage.
19 Obviously -- and this is a point I will come back to
20 -- if further evidence against Hanvey in any form had
21 emerged at a later stage, then the decision could and
22 would have been reviewed
23 THE CHAIRMAN: Suppose you could prove the tipping-off
24 allegation against Hanvey. That would not have proved
25 murder, full stop.
43
1 MR EMMERSON: No, but had there been other evidence to have
2 emerged to put alongside the tipping-off allegation it
3 might have affected the position.
4 The bottom line is, as I shall submit in due course,
5 it could not have made the slightest difference whether
6 we had had the tipping-off file in front of us or not.
7 We had to make the decision when we did. We had to make
8 it as we did, and if something had subsequently emerged,
9 the decision could have been reconsidered. So there is
10 nothing in either point, as we submit.
11 I am moving now to a fairly major topic, which is
12 the Stacey Bridgett series of decisions
13 THE CHAIRMAN: We will have a break here then.
14 Fifteen minutes.
15 (3.15 pm)
16 (A short break)
17 (3.30 pm)
18 MR EMMERSON: Mr Chairman, the third decision that I need to
19 deal with is the decision to discontinue the prosecution
20 of Stacey Bridgett, and in particular the question
21 whether the DPP's office adequately informed itself of
22 the available evidence against Bridgett before making
23 that decision.
24 Several criticisms have been levelled at the DPP
25 which are said to amount individually or collectively to
44
1 a lack of due diligence.
2 Can I just start by reminding the Panel very briefly
3 of the steps by which that decision was taken?
4 When Mr Kitson issued the direction that the
5 prosecution against Forbes, Hanvey and Robinson should
6 be discontinued, which was 29th October, he also issued
7 an interim direction that a final decision on Bridgett
8 should await Mr Kerr's written opinion and receipt of
9 the post-mortem report.
10 The DPP had, of course, been aware since
11 12th May that a spot of Bridgett's blood had been found
12 on the leg of Robert Hamill's jeans, but the statement
13 of Lawrence Marshall detailing that evidence was not
14 received until 3rd November.
15 In his witness statement Mr Kitson explains his
16 evaluation of the case against Bridgett as it stood in
17 November 1997. He said that in his view the evidence
18 was capable of establishing that Bridgett was present,
19 that he was bleeding from the nose, that he was involved
20 in disorderly behaviour, and that he had been
21 sufficiently close to Robert Hamill at some point for
22 a spot of his blood to have dropped on to Mr Hamill's
23 jeans, but he considered that, in the absence of Clarke
24 and Jameson, there was no evidence capable of proving
25 that Bridgett was involved in the attack itself.
45
1 Jonathan Wright's statement alleged that he had seen
2 Bridgett trading punches with another man, but at some
3 distance away from the attack on Mr Hamill.
4 Constable Neill saw Bridgett face-to-face with another
5 man at the Land Rover and later saw him with blood
6 around his mouth. That was confirmed by Constable A.
7 Constable Cooke put Bridgett at the front of the crowd
8 trying to get through to the injured men on the ground,
9 but none of the evidence was, in Mr Kitson's view,
10 capable of proving that Bridgett participated in the
11 fatal attack itself.
12 In his interview with police, Bridgett had denied
13 being anywhere near Robert Hamill at any relevant time.
14 He said he had been near to the Land Rover when he was
15 struck on the nose, and that he then went home.
16 Mr Kitson was clear in his view that the evidence of the
17 finding of Bridgett's blood on Robert Hamill's jeans
18 proved that Bridgett's account to the police in
19 interview was a lie, but as it stood at the time when
20 Mr Marshall's statement was received on 3rd November,
21 the forensic evidence fell short of establishing direct
22 physical contact between the two, and there was no
23 evidence capable of proving exactly when and how the
24 blood transfer had occurred.
25 You will find that all described in Mr Kitson's
46
1 second statement between paragraphs 49 and 51.
2 The next step was the receipt of Mr Kerr's written
3 opinion by the DPP on or about 13th November. That
4 opinion is at [17633]. Mr Kerr expressed the view that
5 the forensic evidence was insufficiently clear to prove
6 the necessary element of direct physical contact.
7 Obviously, if it had been a smear or a foot mark in
8 blood, the position would have been quite different, but
9 a single spot of blood taken alone, said Mr Kerr, could
10 not prove that Mr Bridgett had taken a direct part in
11 the physical assault on Mr Hamill, and so, quite
12 properly, Mr Kerr asked for clarification of the nature
13 and extent of the blood spot.
14 Roger Davison was tasked to follow up that enquiry
15 with Lawrence Marshall. He spoke to Mr Marshall four
16 days later on 17th November and his file note records
17 that Mr Marshall told him that the spot of Bridgett's
18 blood was circular rather than elongated, and for that
19 reason there was no means of knowing the direction from
20 which it had come. Mr Marshall was reluctant to offer
21 Mr Davison any explanation as to how the blood had got
22 there, although he said it was consistent with
23 Robert Hamill lying on the ground and a drop of
24 Bridgett's blood falling on him as he stood over
25 Mr Hamill.
47
1 You will remember that when Mr Marshall gave
2 evidence to the Inquiry, he essentially repeated that
3 opinion, although he expressed the view that all that
4 could be said for certain, the criminal standard of
5 proof, was that the blood spot had struck Mr Hamill's
6 leg perpendicularly. Whilst common sense might suggest
7 Mr Hamill was horizontal at the time, he said, whilst it
8 was consistent with that thesis, the blood spot could
9 not determine for certain the relative position of
10 either man at the time.
11 In the context of the concerns that had been raised
12 in Mr Kerr's opinion, the most important point to emerge
13 from Mr Davison's conversation with Lawrence Marshall
14 was that the forensic evidence couldn't establish direct
15 physical contact and was, therefore, incapable of
16 proving that Bridgett directly participated in the
17 attack on Mr Hamill. The focus of the enquiry was the
18 search for evidence of direct contact.
19 The case against Bridgett was considered in detail
20 on 18th November during the consultation that took place
21 between Mr Kerr, Mr Kitson and Mr Davison. The records
22 of that consultation -- there are two of them -- are at
23 18041 and 18038. They record Mr Kerr's advice that
24 having considered the clarification given by
25 Lawrence Marshall, the evidence was, in his judgment,
48
1 insufficient to sustain a conviction for murder. There
2 was, he said, no evidence to show when or how the blood
3 spot had been transferred, nor was there any evidence to
4 show what Bridgett was doing at the time or what he had
5 done prior to that time.
6 In Mr Kerr's opinion the fact that he had lied in
7 interview was not sufficient to prove guilt. Mr Kitson
8 agreed with that and did not consider that the evidence
9 was strong enough to prove guilt of murder beyond
10 reasonable doubt.
11 Mr Chairman, we say that the decision to discontinue
12 the murder prosecution against Bridgett is beyond
13 challenge. First of all, it falls outside the terms of
14 reference, because it didn't shape the investigation and
15 because it is not part of the Inquiry's functions to
16 determine the merits of the decision. I will come back
17 to the suggested evidential lacunae in a moment.
18 Secondly, we say in any event the decision on the
19 evidence as it stood was plainly within the range of
20 decisions open to a reasonable prosecutor on the
21 evidence. It was made after careful deliberation
22 following the advice of the most senior and experienced
23 prosecuting counsel in Northern Ireland. It was made
24 after enquiries had been made with the forensic
25 scientist as to what additional insight he might be able
49
1 to give, and it has since been independently reviewed
2 both by Mr xxxxx at the DPP's office in an internal
3 review, and by Mr Perry, Queen's Counsel, who was
4 instructed by the Secretary of State to review the
5 decisions, both of them experienced criminal
6 prosecutors, and was found to be justified.
7 It might just be worth standing back for a moment
8 and comparing the evidence as it stood against Bridgett
9 with the evidence as it stood against Hobson by the end
10 of Hobson's prosecution for murder.
11 The case against Hobson for murder was, we say,
12 plainly much stronger than the case against Bridgett.
13 There was direct evidence in Hobson's case from
14 Constable Neill that Hobson had been seen kicking out in
15 the direction of Mr Hamill's head and shoulders whilst
16 he was on the ground. Hobson was nonetheless acquitted
17 of murder. Lord Justice McCollum in his judgment on
18 Hobson held that he could not be convicted of being
19 a direct participant in the attack because the evidence
20 left open the possibility that the kick had not
21 connected and, therefore, had not contributed to the
22 fatal injuries, and he couldn't be convicted on a joint
23 enterprise basis because the evidence left open the
24 possibility that the fatal injury had already been
25 inflicted by the time of Mr Hobson's kick. So neither
50
1 on the basis of direct involvement, nor on the basis of
2 joint enterprise could the judge convict him.
3 That then was the outcome where there was direct
4 evidence of a physical attack on Mr Hamill. In the case
5 of Bridgett there was nothing more than a blood spot, no
6 evidence at all that he had taken any part in the
7 physical attack.
8 I am going to return, if I may, a little later in my
9 submissions to the suggestion made by Mr Green in his
10 written submissions that Hobson should not have been
11 prosecuted for murder in the first place, and I am going
12 to return to the suggestion made by Mr McGrory that
13 Bridgett should have been prosecuted for affray, but,
14 Mr Chairman, the important point for present purposes is
15 that the decision to discontinue the murder prosecution
16 against Bridgett was made on the express basis that he
17 had been close enough to Mr Hamill to drip blood
18 directly on to his trousers and that Bridgett had lied
19 in interview.
20 There is and was no dispute that the prosecution was
21 in a position to prove both of those two matters, and it
22 is against that background that I come to the two issues
23 on which the DPP is criticised of failing properly to
24 inform himself of all the relevant evidence against
25 Bridgett before reaching the decision to discontinue.
51
1 They are, of course, firstly the decision that the DPP
2 should have directed the re-interview of Bridgett
3 following the discovery of the bloodstain and, secondly,
4 the suggestion that the DPP should have directed further
5 or better forensic tests or the appointment of
6 a different forensic expert.
7 I accept on behalf of the PPS that if those
8 criticisms were justified on the evidence, then they
9 would fall within the terms of reference as having
10 shaped the investigation, but we say on the evidence
11 that both are wholly unfounded.
12 Dealing with the first issue, the re-interview
13 issue, we say it was entirely reasonable for Mr Kerr and
14 Mr Kitson to take the view that a further interview in
15 which Bridgett would have the opportunity to provide
16 an innocent explanation for the blood spot, if he could
17 come up with one, would be more likely to undermine the
18 prosecution case than to advance it.
19 From a prosecutor's perspective, they already had
20 a proven lie. The decision not to direct a further
21 interview was a matter of prosecutorial judgment,
22 a tactical question. Mr Kitson's judgment was that this
23 would add nothing to the prosecution case and that was
24 a judgment with which Mr Kerr agreed.
25 In his closing written submissions Mr Underwood has
52
1 suggested that the Panel may need to determine whether
2 the potential value of such an interview was such that
3 a reasonable prosecutor was bound to inform himself of
4 the outcome before deciding whether to direct
5 a prosecution for murder.
6 The answer, we say, is to be found in Mr Kitson's
7 second witness statement at paragraph 58. He said this,
8 and I am quoting:
9 "From the prosecutor's point of view, we already had
10 a proven lie. That was as good as the evidence was
11 likely to get. There would be nothing to gain by
12 affording Bridgett an opportunity to seek to explain the
13 bloodstain away and there was no reason to suppose that
14 a further interview would result in a confession to
15 murder. A tactical question of this nature is
16 essentially a matter of judgment, but my own view is
17 that a further interview would have been more likely to
18 weaken the prosecution case than to strengthen it.
19 There was no reasonable expectation that a further
20 interview would provide any evidence on which to
21 prosecute Bridgett."
22 The same point was made by David Perry, Queen's
23 Counsel, in his review of prosecutorial decision-making
24 for the Secretary of State. The way he put it in his
25 opinion was this, and I quote:
53
1 "It is difficult to see how by re-interviewing
2 Bridgett the prosecution would have obtained any further
3 evidence against him. To the contrary, it would have
4 given him an opportunity to explain away his earlier
5 answers, thereby weakening the prosecution case further.
6 In short, it would have done more harm than good."
7 That's 82209 at paragraph 4.3.
8 So, Mr Chairman, at least three senior prosecutors
9 took the view that there was nothing to be gained from
10 re-interviewing Bridgett: Mr Kerr, Mr Kitson and
11 Mr Perry. We say that must be fairly powerful evidence
12 that a reasonable prosecutor would not consider
13 a further interview to be necessary before making
14 a final decision about the Bridgett prosecution. Even
15 if it could be said that the contrary view is properly
16 arguable, that is, we say, beside the point. The
17 question here is a matter of forensic judgment, and in
18 our submission the decision not to direct a further
19 interview can't properly be stigmatised as a lack of due
20 diligence.
21 We note that Mr McGrory did not seek to argue the
22 interview point in his closing submissions, but he did
23 argue that the DPP should have directed further or
24 better forensic tests or the appointment of a different
25 forensic expert, and that is the second criticism of the
54
1 Bridgett decision.
2 As to this we make two points. Firstly, we say that
3 the DPP was entitled to rely on the expertise of
4 Lawrence Marshall unless or until Mr Marshall indicated
5 that further tests, a second opinion, or a different
6 form of expertise were called for. As I have already
7 stressed, the prosecution of offences involves
8 cooperation between different agencies, each with their
9 own area of expertise and responsibility. We say the
10 DPP was entitled to assume that if Mr Marshall thought
11 that further expertise was required, he would say so.
12 Mr Marshall in his evidence confirmed that the
13 question of how, and how extensively, bloodstains should
14 be tested was a matter to be determined by the Forensic
15 Science Agency. He said that in 1997 he had
16 considerable experience in blood pattern analysis, even
17 though he had not had formal training on the subject.
18 The fact is, Mr Chairman, this was a pretty
19 straightforward circular bloodstain, and Mr Marshall
20 plainly thought that it was well within his capabilities
21 to express an opinion on it. In the absence of some
22 exceptional circumstance, a prosecutor surely can't be
23 expected to second guess the opinion of
24 Northern Ireland's leading expert on blood analysis.
25 In his second statement Mr Kitson said it had not
55
1 occurred to him, or indeed to Mr Kerr or Mr Davison that
2 further tests were required and he explained why. He
3 said this:
4 "We relied on Mr Marshall to determine which areas
5 of bloodstaining should be analysed. Clearly if he had
6 thought further tests would prove fruitful, then he
7 would have conducted these. Mr Marshall was the leading
8 expert in Northern Ireland at the time. If he
9 considered that an opinion on the significance of the
10 blood spot was beyond his expertise or that an expert
11 who specialised in blood pattern analysis, should have
12 been instructed, then I would have expected him to say
13 so. He made no such suggestion."
14 Mr Kerr agreed. He said:
15 "The reality is that Mr Marshall was an experienced
16 forensic scientist who could have and would have
17 suggested if further testing would have added anything
18 to the case."
19 The first point we make is that the DPP was fully
20 entitled to rely on Mr Marshall's expertise, but the
21 second point I want to make is, we say, an independent
22 and equally complete answer. The plain fact is that
23 there is still no evidence that further forensic tests
24 would have added anything to the case against Bridgett.
25 In his closing submissions Mr McGrory suggested that
56
1 a further forensic scientist could have given
2 unequivocal support to the view that Bridgett's blood
3 must have dropped on to Mr Hamill's jeans from
4 a vertical position, but what Mr Kerr and Mr Kitson were
5 looking for was evidence of direct physical contact, and
6 no-one has suggested that forensic evidence was or is
7 now available from any expert which could have supported
8 that conclusion.
9 The position would be different if there were fresh
10 evidence available which was overlooked at the time, but
11 nothing has emerged during the course of this Inquiry to
12 establish that further tests were necessary. Unless it
13 can be shown that additional tests would have made
14 a difference, the criticism of the DPP is without any
15 evidential foundation at all. How can it be said that
16 any diligent prosecutor would have been bound to order
17 further tests, when there is even now no reason to
18 believe that further tests would have strengthened the
19 prosecution case?
20 Lastly, in relation to the Bridgett decision I want
21 to deal with the res gestae point. Mr Kerr took the
22 view that the evidence of Reserve Constable Silcock was
23 inadmissible hearsay and that it did not qualify under
24 the res gestae principle. The decision-maker,
25 Mr Kitson, relied on Mr Kerr's opinion. In our
57
1 submission, on behalf of the PPS, Mr Kitson was entitled
2 to rely on the opinion of leading counsel on what is,
3 after all, a relatively arcane branch of the law of
4 evidence. What is the point of having counsel if you
5 don't listen to their advice?
6 I should make it absolutely clear that the PPS does
7 not accept that this issue falls within the terms of
8 reference. Even if you were to conclude that Mr Kerr's
9 advice on the point was plainly wrong, we say there is
10 no basis for a finding that it shaped the investigation
11 into Robert Hamill's murder.
12 The dispute is essentially a matter of law.
13 Mr McGrory suggests that there is an equally plausible
14 interpretation of the law which would have enabled the
15 prosecution to try to adduce this evidence, and the
16 bench may have some sympathy with that view, but,
17 Mr Chairman, we respectfully submit that resolving
18 a disputed issue about the law of evidence is a very far
19 cry from the purpose for which this Inquiry was set up.
20 THE CHAIRMAN: What you say is, did it shape the decision to
21 prosecute?
22 MR EMMERSON: Yes, it didn't shape the investigation, there
23 was nothing that needed investigating. The only basis,
24 in answer to your question, which has been put forward
25 for suggesting that it might have shaped the
58
1 investigation is the argument floated by Mr Underwood in
2 his closing submissions that maybe the DPP should have
3 asked for a further statement to be taken from Reserve
4 Constable Silcock to clarify his evidence, but with the
5 greatest of respect, we suggest this is another
6 submission that has the hallmark of a device to
7 circumvent the terms of reference.
8 Can I explain why I say that? Constable Silcock's
9 evidence was not in need of clarification. It was
10 perfectly clear. The difficulty lay not in any gaps or
11 ambiguity in his evidence, but in the fact that the
12 woman who made the allegation remained anonymous, so
13 that it was impossible to obtain any direct evidence of
14 what she claimed to have seen. The issue was whether,
15 as a matter of law, the hearsay evidence which
16 Constable Silcock could give was admissible.
17 It is important to bear in mind that attempts had
18 already been made by the police to conduct the only
19 additional investigation which could have helped, that
20 is to seek to identify the woman who spoke to
21 Constable Silcock, but those attempts had all proved
22 fruitless.
23 So the position which confronted the DPP was this:
24 Silcock was able to say quite clearly and unambiguously
25 that an unidentified woman had pointed out a man in the
59
1 crowd whom she said had previously been involved in the
2 attack on Robert Hamill. The attack had by then
3 concluded. In addition, Constable Silcock himself could
4 say from his own observations that the man she pointed
5 out had blood on his nose and responded to the name of
6 Stacey. There was nothing, we say, further to be
7 investigated.
8 The question to be decided was whether, taken
9 together, that was reliable, probative and admissible
10 evidence establishing that Bridgett had been involved in
11 the attack. That, of course, hinged on the legal
12 principles to be applied to the statement of the
13 anonymous woman. Silcock's evidence on its own proved
14 nothing other than that Bridgett was there. The bridge
15 needed to be built by reference to the evidence of the
16 anonymous informant.
17 So the first point we make is that there was no need
18 to seek a further statement from Constable Silcock.
19 There was nothing he could have added. There is
20 nothing, therefore, about the decision which could have
21 shaped the investigation to the murder and it therefore
22 falls outside the terms of reference.
23 Mr Chairman, even if we were wrong about that and
24 the Panel considers the terms of reference require
25 a determination, then we make three substantive
60
1 submissions on the res gestae point.
2 First, we submit that the advice of Mr Kerr was at
3 least a reasonable interpretation of the decision of the
4 House of Lords in Andrews. As Lord Ackner pointed out
5 in that case, the very first question which a judge must
6 ask himself in a res gestae case is whether, having
7 regard to the circumstances in which the statement was
8 made, the possibility of either concoction or distortion
9 can be discounted.
10 It is important to emphasise, we say, that the focus
11 is not just on the risk of concoction in the sense there
12 would be a sufficient interval of time for the person to
13 make up a false statement, but also the risk of
14 distortion, that is serious and obvious unreliability.
15 Now, spontaneity in the course of an event is
16 obviously an important consideration, but it is
17 certainly not the only or decisive consideration. We
18 submit that if the reliability of a hearsay statement is
19 impossible to determine, then it ought not to be
20 admitted under Lord Ackner's formulation. The two
21 critical points here were, firstly, that the fatal
22 attack on Mr Hamill was already over by the time the
23 statement was made to Reserve Constable Silcock, and,
24 linked to that, that this was evidence of identification
25 of a particular individual and the act he was alleged to
61
1 have carried out during the attack that had just
2 occurred. The woman was purporting to identify to
3 Constable Silcock a man she said had recently been
4 involved in the attack.
5 So the question of the correctness of her
6 identification would have been the central issue in
7 determining whether that evidence was of any value. If
8 she was wrong or unreliable about it, it added nothing.
9 Now, it is a long-settled principle that visual
10 identification evidence must be treated as inherently
11 vulnerable to error.
12 A judge is obliged to direct himself or any jury on
13 a number of essential criteria for determining the
14 reliability of identification evidence, the so-called
15 Turnbull criteria, but it would have been quite
16 impossible for any judge to apply the Turnbull criteria
17 to the evidence of this anonymous woman, who had not
18 made any kind of detailed statement, and so there was no
19 means of knowing whether the quality of the
20 identification was weak or strong. She could not be
21 asked how long she had had the man in view or at what
22 distance or under what conditions.
23 It follows, we say, that the circumstances in which
24 the statement came to be made would render it impossible
25 for a judge to exclude the risk of distortion. If that
62
1 risk can't be excluded, then on Lord Ackner's
2 formulation in Andrews the res gestae rule does not
3 apply.
4 Secondly, sir, and in the alternative, we submit
5 that even if the evidence could technically have been
6 brought within the res gestae principle, any judge would
7 have been bound to exclude it on the ground that its
8 probative weight was incapable of being fairly tested at
9 the trial. Because the woman remained anonymous, the
10 judge would be deprived of the very tools for assessing
11 the reliability of the evidence that the law requires
12 him to apply.
13 These would include not only the classic Turnbull
14 considerations but, for example, any possible bias that
15 the woman may have had through association with any of
16 those involved or the communities from which they came.
17 We simply do not know who she was, where she was, what
18 she saw, what the circumstances were or what weight, if
19 any, the evidence could attract, and no judge, we say,
20 would properly admit that evidence under the res gestae
21 principle or any other principle.
22 Thirdly, and in the further alternative, we submit
23 that even if the evidence had been admitted, for the
24 reasons I have already given no probative weight
25 whatever could properly have been attached to it in
63
1 evaluating Bridgett's guilt on the murder charge. In
2 short, it could not have made any difference to the
3 decision whether to prosecute Bridgett or not. Even if
4 it had been taken into account as part of the admissible
5 evidence, there would still have been no reasonable
6 prospect of a conviction for murder.
7 Mr Chairman, that's all I want to say about the
8 Bridgett decision.
9 May I turn now to the decision to discontinue the
10 prosecution of Wayne Lunt -- this is my fourth topic --
11 and the criticisms Mr McGrory has made of that decision?
12 We, of course, don't accept that the merits of the
13 decision fall within the terms of reference, but that
14 said, we do submit that in light of the change in
15 Mr Prunty's account, the decision was inevitable. One
16 only has to analyse how any prosecution of Mr Lunt would
17 have had to be opened by prosecuting counsel at trial to
18 see it would have been dead in the water before it
19 began.
20 In opening the case, prosecuting counsel would have
21 had to say to the trial judge that the prosecution's
22 case against Mr Lunt depended on the reliability of
23 Colin Prunty's evidence that the man he saw involved in
24 the attack on Robert Hamill was the same man he later
25 saw being arrested and taken to the Land Rover, but the
64
1 prosecution would at the same time have to accept that
2 Mr Prunty had lost sight of the attacker before he saw
3 Mr Lunt being arrested, so that the case involved
4 an assessment of Mr Prunty's reliability as
5 an identifying witness, and he would then have to warn
6 the judge that Mr Prunty was going to testify that he
7 was certain that the man he saw attacking Mr Hamill was
8 not the defendant. That is, with respect, hardly
9 a credible basis for a criminal prosecution
10 THE CHAIRMAN: Once he could no longer say he had had the
11 suspect under his view all the time, this ceased to be
12 an eye on the ball kind of identification where one man
13 keeps his eye on the ball and another person identifies
14 the ball. That was the end of the case.
15 MR EMMERSON: That's as we submit. Mr Kitson analysed it as
16 really resting on two propositions: firstly, that Prunty
17 is reliable and correct when he says the man he saw
18 kicking Robert Hamill was the same man he later saw
19 being taken to the Land Rover, and that, of course,
20 depended purely on Prunty's reliability, but the second
21 proposition, which could independently be proved, was
22 that the man Prunty had seen being taken to the
23 Land Rover was Wayne Lunt, and both of them needed to be
24 proved beyond reasonable doubt for any prosecution to
25 proceed. So when Prunty comes forward with the
65
1 identification of Forbes, the situation changes
2 radically. The second proposition might remain sound,
3 but the new account fatally undermined the first.
4 I can conclude what I want to say really by
5 encapsulating what the prosecution would have had to do.
6 They would have had to advance Mr Prunty as reliable and
7 correct when he said he could identify the man he saw
8 being taken to the Land Rover as the man he had earlier
9 seen attacking Robert Hamill, but totally unreliable and
10 incorrect in his unshakeable conviction that that man
11 was Dean Forbes and not Wayne Lunt.
12 We say it would be completely Janus face prosecution
13 to try to put forward your central witness as being
14 simultaneously reliable on that identification and
15 wholly unreliable. It is, with respect, to those who
16 have made the suggestion, nonsensical to suggest there
17 was a reasonable prospect of conviction in those
18 circumstances.
19 Can I turn to the procedural criticisms made by
20 Mr McGrory relating to the showing of photographs and
21 the taking of the statement from Mr Prunty?
22 We say it is clear on a proper analysis of the
23 evidence there is nothing in them. The DPP took the
24 very steps which Mr McGrory now says should have been
25 taken. As soon as Mr Kitson was informed by the Hamill
66
1 family on 3rd November about Mr Prunty's change of
2 heart, he did exactly what Mr McGrory says he should
3 have done, and arranged for a statement to be taken from
4 Mr Prunty by the police. Mr Prunty confirmed in the
5 statement that the man he had seen being released from
6 custody was indeed the man he had identified as having
7 been involved in the attack on Mr Hamill. That's
8 [09105], and that was a statement which, as it stood,
9 presented an apparently insurmountable problem for the
10 prosecution of Lunt.
11 So in the light of the statement, Mr Kitson arranged
12 for Mr Kerr to see Mr Prunty again in consultation to
13 see whether the problem could be resolved. The DPP is
14 criticised for showing photographs to Prunty in those
15 circumstances, but, as Mr Kerr explained, it was the
16 last resort effort to see whether Mr Prunty could be
17 salvaged as a witness. If he had identified the
18 photograph of Lunt, then clearly the identification
19 could not have been used in evidence, but as it was, he
20 confirmed his identification of Forbes, saying that he
21 was near 100% certain of it.
22 We find it, with respect, difficult to see what the
23 criticism is here. The photographs were shown to
24 Mr Prunty in a last ditch attempt to save the
25 prosecution. It is true that difficult issues would
67
1 have arisen about how to handle the issue at trial if
2 the case had proceeded, but the fact is it couldn't
3 proceed precisely because the exercise confirmed what
4 Mr Prunty had said in his witness statement. So all in
5 all we say there is nothing in the criticisms of the DPP
6 in relation to the prosecution of Lunt.
7 The fifth topic I am going to cover is the decision
8 of the DPP not to prosecute any of the accused, apart
9 from Hobson, for public order offences.
10 Mr McGrory has suggested that Bridgett and Lunt
11 should have been prosecuted for affray. Mr Underwood in
12 his written submissions raises as a possible criticism
13 the question whether Robinson should have been
14 prosecuted for affray, although he goes on to conclude
15 that there is no evidence of any lack of due diligence
16 on the part of the DPP on this issue.
17 Can I just deal with all of the accused on public
18 order offences and do it relatively briefly? The
19 starting point is Mr Kitson's decision that summary
20 prosecutions in the magistrate's court for disorderly
21 behaviour would not be in the public interest and
22 therefore would not meet the second limb of the
23 prosecutorial test, because the suspects had already
24 spent six months in custody
25 THE CHAIRMAN: I don't think anyone has challenged that.
68
1 MR EMMERSON: So far as affray was concerned, the case
2 against each of the accused was considered separately
3 and it was concluded that there was no reasonable
4 prospect of conviction on the evidence.
5 As far as Forbes and Hanvey were concerned, the
6 position was clear. Without Tracey Clarke or
7 Timothy Jameson, there was nothing at all to implicate
8 them in the disorder. There was no question of
9 prosecuting either of them for any public order offence.
10 In relation to Bridgett, Mr Kerr and Mr Kitson
11 considered the possibility of a charge of affray after
12 they had decided to discontinue the murder prosecution
13 during their consultation on 18th November. Mr Kitson
14 had initially inclined to the view that Bridgett should
15 be charged with affray, because he had been seen by
16 Jonathan Wright trading punches some distance away from
17 the main attack. Mr Kerr disagreed. He thought the
18 prospects of success were doubtful, because the
19 prosecution could not prove exactly what Bridgett had
20 done.
21 After the consultation, Mr Kitson reflected on
22 Mr Kerr's advice and concluded that he was right. On
23 the evidence of Jonathan Wright alone, the possibility
24 that Bridgett had been acting in self-defence when
25 trading punches by the Land Rover couldn't be positively
69
1 excluded, because nobody knew how the fight had begun or
2 who had been doing what, and the use of force in
3 self-defence would not amount to unlawful fighting,
4 which is an essential ingredient of the crime of affray.
5 This was, we say, an entirely reasonable assessment
6 and the evidence shows that it was reached after careful
7 consideration and consultation with counsel.
8 In relation to Lunt, the evidence of Colin Prunty
9 was, of course, no longer available. Taken alone, the
10 evidence of Constable A might have sustained a charge of
11 disorderly behaviour, but fell far short of proving the
12 necessary ingredients for affray. Mr Kerr advised in
13 writing that a charge of affray would be difficult to
14 sustain on the evidence as it stood, but the issue was
15 considered again during the consultation on
16 18th November, and it was jointly concluded by Mr Kerr,
17 Mr Kitson and Mr Davison that the evidence of
18 Constable A could not sustain a charge of affray.
19 Again, we say the matter was thoroughly considered and
20 reached with due diligence.
21 Finally, in the case of Robinson there was
22 a difference of opinion between Mr Kitson and Mr Kerr.
23 Mr Kitson was of the clear view from the outset that the
24 evidence against Robinson was sufficient to prove
25 disorderly behaviour, but insufficient to prove affray.
70
1 Mr Kerr, on the other hand, expressed the view in his
2 written opinion that the evidence at its height would
3 support a charge of affray against Robinson. So the two
4 of them took different views on the point. Mr Kitson
5 considered Mr Kerr's advice, but on this occasion stuck
6 to his own view of the matter. It was discussed between
7 the two of them at the 18th November consultation.
8 After discussion, Mr Kerr agreed with Mr Kitson and
9 subsequently recorded that by endorsing the Director's
10 10th December letter to the Attorney. Again, we say
11 very carefully considered and appropriately dealt with
12 In his closing written submission Mr Underwood
13 characterised the Robinson decision in these terms. He
14 said:
15 "Mr Kerr thought there was a case for affray.
16 Mr Kitson thought not. The Director arranged
17 a consultation which resulted in the consensus that no
18 charge was justified. The Panel may or may not agree
19 with that decision, but it is difficult to see how it
20 discloses any want of due diligence."
21 We agree with that assessment, and we would add that
22 it is in any event very difficult to see how the final
23 decision not to prefer affray charges against five of
24 the accused could fall within the terms of reference.
25 It didn't shape the police investigation into the
71
1 murder, and any adverse determination would fall foul of
2 the merits rule. There is certainly no suggestion in
3 any of these cases, as far as the affray charges are
4 concerned, that the DPP failed to make enquiries
5 necessary to equip himself to make a prosecutorial
6 decision properly.
7 Mr Chairman, I want to turn now to the sixth
8 topic --
9 THE CHAIRMAN: Yes.
10 MR EMMERSON: -- which is the suggestion that the office of
11 the DPP should not have made decisions on the murder
12 file without waiting for the submission of the
13 tipping-off file in relation to Reserve Constable
14 Atkinson.
15 Both Mr McGrory and British Irish Rights Watch have
16 strongly suggested that due diligence required the DPP
17 to look at the two files together before reaching
18 a decision on the murder file, particularly in relation
19 to Allister Hanvey.
20 This is one of those points which takes on a rather
21 different hue when it is seen in its proper
22 chronological context. The evidence shows that prior to
23 17th October 2007, when Tracey Clarke retracted her
24 statement, the DPP had been told by P39 that a separate
25 police file on the tipping-off allegation was on its
72
1 way. A note to that effect was included in the
2 confidential memorandum that was supplied to the DPP
3 shortly after the murder file was received. You will
4 recall it dealt with Witnesses A and B. It had been
5 missing when the murder file was first submitted, but
6 was the subject of a request from Mr Kitson and was
7 received in the DPP's office on 15th August, and the
8 reference is [15952].
9 What that said in relation to Atkinson was that,
10 "Reference the allegation against a reserve constable,
11 a separate police file on this matter is being compiled
12 and will be forwarded in due course", or words to that
13 effect.
14 So the tipping-off file was expected as of
15 17th October, when Tracey Clarke came in for her
16 consultation. Up until that point, plainly there was no
17 reason for Mr Kitson to call the file in whilst the
18 police investigation was incomplete and still ongoing --
19 THE CHAIRMAN: The murder was still alive.
20 MR EMMERSON: -- and the murder was still alive until that
21 moment. There is no doubt, and we agree with this
22 proposition, that the tipping-off allegation could have
23 been relevant, possibly highly relevant, in the
24 prosecution of Hanvey as well as potentially providing
25 grounds for the prosecution of Atkinson as an accessory
73
1 to murder as the case stood at that time.
2 THE CHAIRMAN: But it could never on its own prove murder.
3 MR EMMERSON: Exactly. Mr Kitson deals with this in his
4 statement. If Tracey Clarke had still been prepared to
5 testify, then evidence that Atkinson had made a series
6 of phone calls with the intention of tipping off Hanvey
7 about the investigation would have provided strong
8 support for her evidence that Hanvey had been involved
9 in the attack, but that possibility was overtaken by
10 events in mid-October when Tracey Clarke refused to
11 testify. From that point onwards, there was no longer
12 a case against Hanvey, and the DPP, as we have said, was
13 legally obliged to discontinue when he did.
14 So it is quite true to say that the decision was
15 made before the tipping-off file had arrived, but no
16 decision is final, and if other evidence had emerged to
17 implicate Hanvey in the murder, then the decision could,
18 and would, have been revisited.
19 In particular, I suggest at least if the tipping-off
20 file had provided evidence to prosecute Atkinson, then
21 the case against Hanvey would have had to be
22 reconsidered, even if it would not in those
23 circumstances have provided evidence to prosecute him
24 for murder.
25 The plain fact is nothing of that kind ever
74
1 happened. This is really the second point. When the
2 tipping-off file did come into the DPP on
3 13th February 1998, it recommended no prosecution of
4 Atkinson.
5 Now, so far as I am aware, it is common ground
6 amongst all the parties and Counsel to the Inquiry that
7 there was, in fact, insufficient evidence to prosecute
8 Atkinson for the tipping-off or for any offence at that
9 time in 1998, or at any time before Andrea McKee changed
10 her story in 2000. No-one is suggesting that Atkinson
11 could have been prosecuted for anything until
12 Andrea McKee's account changed
13 THE CHAIRMAN: Andrea McKee's evidence proved a different
14 conspiracy, though I am bound to say I am not sure that
15 the office of the DPP always realised this. I note, for
16 instance, Mr Carl Simpson, when he opened the case
17 against Andrea McKee and her husband, opened it rather
18 as though he were dealing with the original conspiracy,
19 but he was not.
20 MR EMMERSON: I accept the question whether conspiracy
21 number 1 needed to be proved as an element of conspiracy
22 number 2 really only came to be teased out with the
23 discipline with which it ought to have been teased out
24 by all of us I think, if I may say so, as the
25 submissions have been formulated. You asked for one
75
1 point for submissions on what the legal requirements
2 would be. I think you have received them certainly from
3 us.
4 THE CHAIRMAN: The House of Lords' decision last year has
5 laid the matter at rest.
6 MR EMMERSON: Yes, but in a sense that does not touch on the
7 issue that I am concerned with at the moment, which is
8 that certainly there was no evidence to prosecute
9 Atkinson in 1997, 1998 or at any time before 2000 for
10 any conspiracy and no-one seems to dispute this.
11 Tracey Clarke was no longer available. All that
12 remained, therefore, was the telephone records and the
13 explanations which had been given by the Atkinsons, the
14 Hanveys and the McKees.
15 I just want, if I may, to pause for a moment to
16 examine the implications of that, because if it is right
17 that there was insufficient evidence to prosecute
18 Atkinson before 2000, then it must follow that, even if
19 Mr Kitson had had the tipping-off file in front of him
20 when he made the decisions on the murder file, it could
21 not have made the slightest difference to the decision
22 to abandon the prosecution against Hanvey, because there
23 was nothing in the file that would have justified
24 a different view.
25 So, Mr Chairman, we say the Panel may really wonder
76
1 whether the suggestion that the DPP should have waited
2 for the tipping-off file is a complete red herring.
3 Following Tracey Clarke's retraction, the Hanvey
4 prosecution had to be abandoned when it was, and, more
5 importantly, given what was in the tipping-off file, it
6 could not have made the slightest difference to any
7 decision that was made in the murder file, even if it
8 had been available.
9 THE CHAIRMAN: There was no evidence of the conspiracy
10 against Atkinson, even if Tracey Clarke had given
11 evidence, but there was no evidence against Hanvey
12 because she would not give evidence.
13 MR EMMERSON: Exactly. She had gone. Whatever criticisms
14 may be levelled against Mr McBurney for delaying the
15 tipping-off investigation, it certainly is not a factor
16 that in any way affected the prosecutorial decisions
17 that were taken on the murder file, or could have.
18 Finally, under the head of material that is said to
19 have been missing, can I just briefly address the
20 criticism which emerged from left field in the
21 submissions of British Irish Rights Watch?
22 When Ms Winter appeared before you last week, she
23 suggested that the DPP was somehow at fault in making
24 decisions on the murder prosecution before receiving the
25 post-mortem report. I hope it is now reasonably clear
77
1 that that was entirely misconceived. The only person
2 who was prosecuted for murder was Marc Hobson and the
3 post-mortem report was available before the DPP issued
4 the direction to prosecute in his case. The decision to
5 discontinue the prosecution against the other five had
6 nothing at all to do with the post-mortem report. It
7 did not depend in any way on what was in that report.
8 It depended on the strength of the evidence implicating
9 them in the direct physical participation in the attack.
10 Mr Chairman, topic number 7 is the Hobson
11 prosecution and three issues which arise out of that.
12 The first requires just a moment's clarification, if
13 I may.
14 I don't ask this be called up, but may I ask you to
15 note that at page [973] of the consolidated closing
16 submissions there is a lengthy submission about the
17 prosecution of Mr Hobson which is attributed to British
18 Irish Rights Watch and the Committee on the
19 Administration of Justice?
20 That attribution is an error. Those submissions
21 were, in fact, made by Mr Green on behalf of
22 Marc Hobson. I note he is not with us this afternoon,
23 but he has certainly invited me to clarify that and
24 I know he has clarified it with the Inquiry team.
25 Can I just deal with that passage, because in those
78
1 submissions Mr Green suggests that the DPP should be
2 criticised by the Inquiry for the fact that it did
3 prosecute his client for murder.
4 The essence of the criticism is this: he points out
5 that in his November 1997 opinion on the murder
6 prosecution Mr Kerr had said that before he could reach
7 a final decision on whether Hobson should be prosecuted
8 for murder, it would be necessary to clarify the
9 evidence of Constable Neill to determine whether the
10 kick which he saw Marc Hobson deliver to Mr Hamill had
11 connected or not.
12 The post-mortem report was expected to show that
13 Mr Hamill's death had been caused by multiple blows, and
14 Mr Kerr wanted to know whether the prosecution could
15 prove that Hobson's kick had contributed to that so that
16 he could be convicted as a direct participant in the
17 murder, having potentially inflicted one of the injuries
18 that contributed to the cause of death.
19 As a result of Mr Kerr's opinion, a further
20 statement was taken from Constable Neill, which is at
21 61207 in which Neill said that he could clearly see
22 Hobson "kick at Hamill in the shoulder or head area",
23 but that he could not say for certain whether the kick
24 made contact. That was his evidence at trial and the
25 basis on which he was acquitted by the trial judge of
79
1 direct participation in the murder.
2 So, suggests Mr Green, it should have been clear to
3 the DPP from this second witness statement that there
4 was never a reasonable prospect of conviction for murder
5 and that Hobson should not have faced that charge at
6 trial.
7 We make four points in response. First, we say that
8 this complaint is patently outside the terms of
9 reference. The choice of charge which Hobson should
10 face is not a decision which shaped the police
11 investigation to the murder and it is no part of the
12 Panel's functions to determine the merits of the
13 decision.
14 Secondly, we point out that this suggestion was
15 never put to Mr Kerr or to Mr Kitson when they gave
16 evidence, so that they didn't have the opportunity to
17 deal with it, nor did it feature at all in Mr Green's
18 oral submissions on Monday, although he did not withdraw
19 it and it remains within the composite closing
20 submissions as a submission now in its corrected form
21 made on behalf of Marc Hobson.
22 Thirdly, as to the merits of the complaint, the
23 murder charge was put on the alternative basis of
24 a joint enterprise to which Hobson was a party.
25 The prosecution allege that Hobson's kick, whether it
80
1 connected or not, was encouragement to others to
2 participate in the fatal attack on Mr Hamill
3 THE CHAIRMAN: Which was continuing.
4 MR EMMERSON: That was the way the case was put.
5 THE CHAIRMAN: Yes.
6 MR EMMERSON: On the evidence, the judge rejected that,
7 because he said the evidence left open the possibility
8 that Hobson's kick had been delivered after the fatal
9 injuries had been sustained, but that is the function,
10 we say, of a criminal trial.
11 One can only imagine the criticisms that would have
12 been levelled at the DPP if he had taken the decision in
13 those circumstances that there was insufficient evidence
14 to prosecute for murder.
15 Fourthly, can I just pause and just point to the
16 irony of the fact that the DPP stands in these
17 proceedings facing a criticism from Mr Green for
18 prosecuting Hobson for murder whilst at the same time
19 facing criticism from Mr McGrory for not prosecuting
20 Bridgett for murder? That's despite the fact that the
21 evidence against Hobson was plainly much stronger, much
22 more direct and much more compelling than the evidence
23 against Bridgett.
24 The Panel may think this illustrates the reason why
25 the Secretary of State was right to decide that the
81
1 merits of prosecutorial decision-making should be
2 outside the Inquiry's terms of reference
3 THE CHAIRMAN: We are not concerned with whether or not the
4 Secretary of State was right. It was his decision, full
5 stop.
6 MR EMMERSON: The short point, Mr Chairman, is it is simply
7 not the function of the Inquiry to provide a forum for
8 the ventilation of grievances of those who are
9 dissatisfied by professional judgments.
10 THE CHAIRMAN: I think Mr Green understands that.
11 MR EMMERSON: Next, I want to turn to the criticisms of the
12 DPP to use Atkinson as a prosecution witness against
13 Hobson and to redact Tracey Clarke's witness statement
14 before its disclosure to Hobson's defence team. I can
15 take those two points briefly because it is now clear
16 that full disclosure was, in fact, given to Hobson's
17 defence team and there is nothing really left in the
18 point. I should also stress there is really no basis in
19 this instance either for a conclusion that these issues
20 fall within the terms of reference.
21 That said, can I make four short points? First, the
22 decision to use Atkinson as a witness against Hobson in
23 the first place we say is not in itself amenable to
24 criticism. At the time the decision was made, the DPP
25 had received advice from counsel that the evidence was
82
1 insufficient to prosecute Atkinson for the tipping-off
2 allegation. The evidence of the phone calls was
3 apparently explained by the statements of the McKees and
4 Eleanor Atkinson and by the account which the Hanveys
5 had given to the police. There was a lingering
6 suspicion about Atkinson's conduct, but no more than
7 that. Providing proper disclosure was given to the
8 defence, the prosecution was free to use him as
9 a witness if they considered he had relevant evidence to
10 give
11 THE CHAIRMAN: Forgive me for interrupting, Mr Emmerson, but
12 the decision to use Atkinson or not is outside our terms
13 of reference, isn't it?
14 MR EMMERSON: Yes.
15 THE CHAIRMAN: Then it would be quite inappropriate for us
16 in our report to point out the justifications for
17 calling Atkinson as a witness when those are outside our
18 terms of reference.
19 MR EMMERSON: Yes. I simply raise it because you will
20 appreciate it is a criticism that has been ventilated,
21 not only in the evidence, but in the closing submissions
22 both by Mr McGrory and by the British Irish Rights
23 Watch, but if you don't require any further submissions,
24 I will not deal with it.
25 THE CHAIRMAN: I think we have to remember we are dealing
83
1 with matters that fall within our terms of reference.
2 We are not a vehicle for other attacks or defences, as
3 I pointed out on another occasion.
4 MR EMMERSON: Then let me turn, if I may, then, to the
5 consequent issue of the disclosure during the Hobson
6 prosecution.
7 THE CHAIRMAN: Yes.
8 MR EMMERSON: We say the prosecution's duty of disclosure
9 consequent on calling Atkinson was properly discharged.
10 It became clear during evidence that Hobson's defence
11 team at trial had received full transcripts of the
12 interviews with Atkinson in September and October in
13 which the tipping-off allegations had been put to him.
14 They were also aware that the DPP had received and was
15 considering a file against Atkinson for the offence of
16 assisting an offender, and the defence specifically
17 asked in correspondence when the DPP expected to make
18 a final decision on the prosecution of Atkinson and the
19 Land Rover officers.
20 The defence subsequently asked for copies of the
21 statements of Witnesses A and B which had led to
22 Mr Hobson's arrest. May I make it quite clear that in
23 view of the allegations against Reserve
24 Constable Atkinson and Miss Clarke's statement the
25 Director accepts that disclosure ought to have been
84
1 given to the defence at an early stage? Mr Burnside
2 initially withheld the statements for reasons that he
3 explained in his evidence, but he eventually disclosed
4 them on Mr Kerr's advice, and he accepted in his
5 evidence eventually that he had been wrong to withhold
6 the statements in the first place.
7 As any criminal lawyer knows, differences of opinion
8 about the extent of prosecution disclosure obligations
9 are not uncommon in criminal litigation, and
10 Mr Burnside's initial reluctance to disclose we say is
11 neither here nor there.
12 Thirdly -- and can I just deal with this, because it
13 was opened and a considerable amount was made of it in
14 the evidence -- we point to the fact that there was very
15 obviously nothing sinister in the redactions which were
16 made to the statements. The defence disclosure request
17 was couched in terms which expressly contemplate that
18 both statements would be redacted to remove the names
19 and addresses and identities of those contained within
20 it. Consistent with the defence request, both
21 statements were redacted in an identical manner to
22 remove any information which could have led to the
23 identification of the statement maker, and the important
24 point is that there was no attempt to conceal material
25 which ought to have been disclosed.
85
1 The statement of Ms Clarke was not redacted to
2 remove the reference to the tipping-off allegation. The
3 allegation that a police officer had tipped of a suspect
4 remained in the statement. It was merely redacted to
5 remove names and places.
6 THE CHAIRMAN: I think the identity of a common solicitor
7 for Hobson and others really enables the inference to be
8 drawn that the name of the statement maker was known to
9 the defence. I think one can take it that if they
10 didn't know, there would have been a great deal of fuss
11 about it and probably a PII application, because I would
12 have said that the name of the statement maker, unless
13 concealment was justified by public interest, was
14 plainly disclosable.
15 As I say, I think it didn't matter because I am
16 quite sure -- the inference is there the defence knew.
17 I don't think Mr Green has ever suggested that they were
18 handicapped --
19 MR GREEN: No, indeed, sir. As the evidence emerged, it
20 seemed quite clear to all parties that the matter was
21 not to the disadvantage of the team representing
22 Mr Hobson.
23 MR EMMERSON: Yes. One might add that despite being fully
24 aware of it, counsel for Hobson at trial chose not to
25 deploy the matter to any significant extent in
86
1 cross-examination.
2 It is probably worth noting, before we part with
3 this topic, that really it may have been inevitable that
4 it was not pursued in cross-examination to any
5 significant degree, because it is really only in the
6 most exceptional cases that defence counsel will be
7 permitted to cross-examine a police officer as to credit
8 on what are unsubstantiated allegations against him.
9 There is case law on the point. Once again, this turned
10 out, we say, to be a bit of a red herring.
11 Mr Chairman, topic 8 is the decision to prosecute
12 Andrea and Michael McKee for conspiracy to pervert the
13 course of justice.
14 THE CHAIRMAN: Just before we leave topic 7, the disclosure,
15 even if it were open to criticism, did not shape any
16 decision, did it?
17 MR EMMERSON: It didn't, sir.
18 THE CHAIRMAN: Any investigation.
19 MR EMMERSON: No.
20 THE CHAIRMAN: So it would be outwith our terms of
21 reference.
22 MR EMMERSON: As I think I foreshadowed at the very outset
23 of my submissions, it is one of those subsidiary
24 decisions that falls outside the terms of reference
25 altogether. It is a prosecutorial decision strictly
87
1 concerned with the prosecution process.
2 Can I turn then to the prosecution of the McKees for
3 conspiracy to pervert the course of justice? There are
4 three issues that have been raised under that heading.
5 The first is the question of whether we were wrong,
6 as prosecutors, to prosecute her at all and we should
7 instead have granted her immunity and treated her from
8 the outset as a witness.
9 The second is the decision to prosecute the McKee
10 case to a conclusion before proceeding against Atkinson
11 and others. That is something I can deal with very
12 briefly.
13 The third is the decision not to defer sentence on
14 Andrea McKee until after she had given evidence in the
15 Atkinson trial. I will deal with each of these as
16 quickly as I can. We say, strictly speaking, their
17 correctness falls outside the terms of reference, but on
18 the evidence we say the decisions were plainly right and
19 reached with due diligence.
20 Can I deal with the immunity evidence first. The
21 sequence of events is as follows.
22 On 26th June 2000 Mr Kitson has a meeting with
23 Detective Chief Superintendent McBurney, Mr Irwin and
24 Mr xxxxx of the ICPC. So this is very shortly after the
25 Andrea McKee development. Mr McBurney wanted advice
88
1 from the DPP on whether he had been right to take
2 a witness statement from Andrea McKee rather than
3 interviewing her under caution. He also wanted advice
4 on how he should approach Michael McKee. Mr Kitson
5 pointed out that Andrea McKee appeared to have committed
6 a criminal offence, and said that the implications of
7 the decision not to interview her under caution would
8 have to be considered if and when a police file was
9 received, but he stressed that he was not in a position
10 to offer an immunity from prosecution without a written
11 application from the police and that he did not in any
12 event have the personal authority to issue an immunity.
13 The note is 17626.
14 As Mr Kitson explained in his second statement to
15 the Inquiry, a decision to treat an accomplice as
16 a witness rather than to prosecute was a matter which
17 required the Director's personal approval and could
18 never be resolved in advance and in the abstract without
19 a written application from the police and without all of
20 the relevant evidence being available.
21 Mr Kitson had two subsequent meetings with the
22 investigating officers in which this topic was
23 discussed. On 5th December he met again with
24 Mr McBurney and representatives of PONI. That's
25 [16673]. He reiterated that the question of an immunity
89
1 for Andrea McKee could only be decided after the police
2 investigation file had been submitted, and he pointed
3 out that in submitting the file, the police could make
4 a recommendation for immunity that would be considered
5 then in the light of all the relevant evidence and
6 weighing the public interest factors at stake.
7 The third meeting then took place on 28th February
8 2001, by which time Mr McBurney had been replaced by
9 detective chief superintendent Colville Stewart. That
10 is [74152]: Detective Chief Inspector K and Mr Mahaffey
11 of PONI were also present [74152]. Again Mr Kitson
12 reiterated that the DPP would take a decision on
13 immunity once the police submitted the prosecution file
14 and in the light of any recommendation the police might
15 make, but in the meantime it would be a matter for the
16 investigating officer to decide how to treat
17 Andrea McKee.
18 Both Mr Colville Stewart and K confirmed during
19 their evidence to the Inquiry that that was also their
20 understanding of the distribution of responsibility and
21 the minute records that Mr Colville Stewart would make
22 the decision but that both the police officers and PONI
23 were in agreement that in order to strengthen
24 Andrea McKee's credibility as a witness, she should be
25 prosecuted for her part in the conspiracy first. So
90
1 that was a police decision.
2 When the police file was submitted on 12th June 2001
3 it recommended that Andrea McKee should be prosecuted.
4 No question of immunity was raised, but, of course, the
5 report and the covering letter made it clear that the
6 expectation was that she would plead guilty and then
7 give evidence for the prosecution against her
8 co-conspirators.
9 Now we say basically three points emerge from this.
10 First, the decision whether to seek an immunity was very
11 properly made by the senior investigating police
12 officer.
13 Second, the decision to prosecute rather than seek
14 an immunity was made with the agreement of PONI and,
15 third, the actions of the DPP were correct and
16 inevitable.
17 Once the police file was received, there was plainly
18 sufficient evidence to prosecute Andrea McKee on her own
19 confession. All expected that she would plead guilty
20 and give evidence. There was no need for an immunity
21 and the police did not apply for one, because they
22 thought that her evidence would have greater credibility
23 if she had already been dealt with for her part in the
24 offence.
25 The second criticism which has been levelled at the
91
1 DPP is that it was somehow wrong to proceed with the
2 McKee prosecution separately from and before the
3 prosecution of Atkinson and others. That's a point
4 which is only maintained by British Irish Rights Watch.
5 THE CHAIRMAN: Could you have got a committal, even
6 without --
7 MR EMMERSON: Exactly, sir. We couldn't have got
8 a committal, got it past committal. The prosecution of
9 Andrea McKee had to be brought to a conclusion before
10 the Atkinson prosecution.
11 The third point which has been made against us is
12 that sentencing should have been deferred until after
13 she had given evidence for the prosecution. That, of
14 course, was a decision made on the advice of prosecuting
15 counsel, Mr Simpson, Carl Simpson, and was, as the
16 evidence establishes, in line with settled prosecution
17 practice in Northern Ireland at the time, but actually
18 the underlying rationale was exactly the same as the
19 reason she was being prosecuted in the first place,
20 namely to ensure that she could be presented in the
21 Atkinson prosecution as a witness with nothing to gain
22 from giving evidence. There is nothing, we say, about
23 that decision which justifies any criticism of the DPP.
24 Mr Chairman, the ninth topic I am going to deal
25 with --
92
1 THE CHAIRMAN: Just before you leave this one, do you say
2 all these matters are in any event outside our terms of
3 reference?
4 MR EMMERSON: Outside your terms of reference.
5 THE CHAIRMAN: We will have a short break now. If we have
6 a break until 5 o'clock, you will certainly finish this
7 evening.
8 MR EMMERSON: I will finish within 20 minutes or so.
9 THE CHAIRMAN: A quarter of an hour.
10 (4.45 pm)
11 (A short break)
12 (5.00 pm)
13 THE CHAIRMAN: Mr Emmerson, we shall break off at 5.15.
14 MR EMMERSON: I am aiming to finish as close to that as
15 possible.
16 The ninth topic I have to deal with is the decision
17 to discontinue the prosecution of Atkinson and others in
18 the light of the DPP's assessment that Andrea McKee had
19 lied about her attendance at Pendine.
20 The first question obviously the Panel is going to
21 have to determine is whether that prosecutorial decision
22 falls within the terms of reference at all. We have
23 already made our submissions on that point. We say the
24 suggestion that Atkinson might have given evidence
25 against Hanvey if he had been convicted of the
93
1 conspiracy charge is nothing more than speculation, and
2 there is no basis for concluding that the decision
3 shaped the investigation, but even if we are wrong about
4 that, it is still no part of the Panel's function to
5 determine the merits of the decision.
6 As Sir Alasdair Fraser said in his evidence to the
7 Inquiry, this was a finely balanced judgment and one on
8 which he recognises that a different prosecutor might
9 have taken a different view, but whether the Panel
10 agrees with the decision or not, we say that it is clear
11 that the decision-maker, who was Sir Alasdair himself,
12 applied the right legal test and took account of all of
13 the identified relevant considerations.
14 The minutes of the meeting which took place on
15 26th February make it clear that the Director was asking
16 himself the right question, that is whether the lies
17 which Andrea McKee had told about Pendine undermined her
18 general credibility on the central issue about which she
19 was to be called to give evidence. That's [33980]. It
20 is also clear from those minutes that the Director had
21 an open mind on the question, and that he specifically
22 raised the possibility that, despite the lies that she
23 had told, she might remain credible on the central
24 evidence that she was to give.
25 We respectfully submit that it is not for the Panel
94
1 to say whether, in its view, Sir Alasdair attached the
2 correct weight to each of the considerations he took
3 into account or whether the decision he reached was
4 right or wrong on the merits.
5 What the Panel undoubtedly does have to do is to
6 reach its own decision on the credibility of
7 Andrea McKee's evidence to the Inquiry, but the evidence
8 and material available to the Panel is very different
9 from the evidence and material which was available to
10 Sir Alasdair in 2004, not least because the Panel has
11 heard Mrs McKee give her evidence in full, and you have
12 seen her cross-examined on the Pendine issue by me. You
13 are, therefore, in the best possible position to assess
14 whether she was telling you the truth about Pendine,
15 and, if not, the extent to which her lies on that issue,
16 in your view, undermine her general credibility, but
17 that is self-evidently a different exercise from
18 examining the merits of the decision taken by the DPP in
19 2004.
20 So we say that the only question the Panel has to
21 determine about the decision-making of the DPP, if
22 indeed the issue falls within the terms of reference at
23 all, is whether he properly equipped himself to make the
24 decision by ensuring that he had all the relevant
25 evidence before him.
95
1 There is only one respect in which it has been
2 suggested that the DPP should have directed further
3 investigations to be made before reaching the decision,
4 and that is the suggestion that he should have sought
5 a more detailed medical report from the GP to
6 substantiate Andrea McKee's account of the child's
7 illness, but for reasons I am going to come to, we
8 submit there is nothing whatever in that criticism. It
9 was accepted by the DPP that the child had been ill.
10 That was not in dispute.
11 The credibility question was not whether Mrs McKee
12 was lying about the child's illness, but whether she had
13 embellished her account by making up the visit to
14 Pendine and, if so, whether that lie, which she
15 maintained in the face of the evidence, so undermined
16 her general credibility as to deprive the prosecution of
17 a reasonable prospect of conviction.
18 As I say, we recognise that the Panel may or may not
19 agree with the Director's assessment, but one thing is
20 clear. A further medical report from the GP could have
21 shed no light at all on the issue of Pendine. The
22 statements which had already been taken from the GP
23 fully chronicled the actual contact which Andrea McKee
24 had had with her GP's practice. Indeed, in one respect
25 the statements went further than the GP records; that's
96
1 the 11th December home visit.
2 There is no reason whatever to believe that the GP's
3 practice had any further relevant evidence to give about
4 the child's illness, but even if it had been possible
5 for the doctors to remember additional details, that
6 wouldn't have answered the question about Pendine. The
7 GP's practice had nothing to say about Pendine and
8 Pendine was the credibility issue which had been
9 identified as potentially undermining Andrea McKee's
10 evidence.
11 What was the answer to that? How is the case
12 against the DPP put? Well, it is suggested that that
13 shows that the DPP was focusing on the wrong question.
14 The question that he should have been asking, it is
15 said, is not whether the child had been taken to
16 Pendine, but whether the child was genuinely ill.
17 In our submission, that's just not right. It
18 confuses two separate issues, both of which were
19 independently relevant to her credibility. Clearly, if
20 she had also been lying when she said the child was ill,
21 then that would have been another, different, major blow
22 to her credibility, but the fact that the child was
23 indeed ill did not mean that the lies that she told
24 about Pendine were irrelevant to her credibility, as
25 Mr McGrory seemed to be suggesting at one point.
97
1 Anything adverse to the credibility of the principal
2 witness is clearly relevant to the prospects of
3 a successful conviction. The Director was not only
4 entitled but obliged to take the Pendine issue into
5 account. A prosecutor is under a continuing duty to
6 review the prospects of conviction whilst a prosecution
7 is proceeding and that was plainly a relevant
8 consideration for the prosecutor to take into account.
9 Beyond that, it then becomes a question of the
10 weight which he attached to the lie she told about
11 Pendine, and on ordinary public law principles the
12 weight to be attached to the relevant considerations
13 will generally be a matter for the primary
14 decision-maker.
15 Mr Chairman, there can, in our submission, be no
16 real doubt that Andrea McKee did lie about Pendine. Not
17 only is there no record at all of her attendance or the
18 supposed telephone calls, but the acid test is her
19 transparently dishonest attempt to explain away the
20 problem that there was no grey-haired male doctor on
21 duty at Pendine over the weekend, so that the
22 description she had given to Christine Smith and
23 Ivor Morrison on 9th February was plainly wrong, but
24 when she was confronted about that during the
25 consultation with Mr Simpson, she gave the wholly
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1 implausible explanation that, despite being the mother
2 of the sick child, and despite being a trainee nurse
3 herself, she had remained in the waiting room during the
4 examination of the child.
5 Not only that, but the explanation was completely
6 irreconcilable with the detailed account she had given
7 on 9th January when she provided a step-by-step,
8 blow-by-blow, detailed description of the physical
9 examination of the child inside the consultation room
10 down to the point where she could describe the doctor
11 palpating the child's glands and told Miss Smith that
12 the doctor had made no notes, none of which she could
13 have known if she had been in the waiting room. Even
14 her own counsel has not sought to persuade you she was
15 telling the truth about Pendine.
16 The Panel will have to decide in its own view what
17 weight should attach to that series of lies in assessing
18 the general credibility of the evidence that she has
19 given to the Inquiry. It is no part of my function, and
20 I make that clear, on behalf of the PPS, to seek to
21 persuade you today that you should disbelieve the
22 allegations she has made in her evidence to the Inquiry
23 about Reserve Constable Atkinson. That is not part of
24 my brief, but it is important to recognise that's a very
25 different question from the question of whether the
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1 Director's decision in 2004 can be stigmatised as
2 irrational.
3 In his closing submissions Mr McGrory singled out
4 two aspects of the Director's decision which he said
5 showed the wrong legal test had been applied or that
6 irrelevant considerations had been taken into account.
7 First, he said the decision was made on the
8 erroneous assumption that the magistrate had granted
9 an additional adjustment so he could retrospectively
10 annul his decision to adjourn the committal if the
11 medical evidence turned out not no support the reasons
12 that had been given by counsel.
13 Mr Chairman, it is common ground that if that was
14 Mr Morrison's understanding, or indeed Mr McGinty's
15 understanding, and there is some evidence to suggest
16 that it might have been, then they were wrong, but that
17 we say is immaterial, because the decision-maker here
18 was neither Mr Morrison nor Mr McGinty, but the Director
19 himself, and his evidence on the point was unequivocal.
20 He said that the suggestion that the adjournment had
21 been conditional formed no part of his reasoning. He
22 doubted whether the magistrate would have had the power
23 to bring the proceedings to an end, and it was not the
24 test that he applied. The question he asked himself was
25 whether the lies about Pendine so undermined Mrs McKee's
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1 general credibility as to deprive the prosecution of
2 a reasonable prospect of conviction, and we say that was
3 plainly the right approach.
4 Even if the magistrate had had the power to bring
5 the proceedings to an end on that basis, it would
6 always have been open to the Director to re-prosecute
7 using a voluntary bill procedure.
8 The question he needed to direct his mind to was the
9 likely outcome at trial, and that is exactly what he
10 did. It is, we say, irrelevant that some of those
11 advising the Director or the Attorney may have been
12 under the mistaken impression that the magistrate had
13 the power to stop the case. That view plainly did not
14 play any part in the Director's decision and he was the
15 decision-maker.
16 The second point Mr McGrory made was that the
17 credibility issues are irrelevant at committal, because
18 the magistrate is required to take the evidence at its
19 height. He suggested the DPP should have at least run
20 the case past the committal stage.
21 Mr Chairman, the PPS strongly disagrees with the
22 suggestion that it could ever be appropriate for
23 a prosecutor to allow a case to proceed to committal
24 where he has already formed the view that there was no
25 longer a reasonable prospect of conviction at trial.
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1 The test for prosecution is clear, and must be kept
2 under continual review by reference to the prospects of
3 conviction at trial, not the prospect that a case might
4 be returned for trial at a committal hearing. If it
5 becomes clear before committal that the test will not be
6 met, then the prosecution must be discontinued.
7 A large number of other tangential criticisms were
8 raised during the course of the evidence, each of which,
9 in our submission, falls outside the terms of reference,
10 but can I just deal with one of them?
11 It was suggested that there was no need at all to
12 conduct a detailed investigation into the Pendine issue
13 in the first place, because the evidence of the GP was
14 sufficient to justify the adjournment.
15 May I make five short submissions in response to
16 that? First, it was Mrs McKee who volunteered the
17 information about Pendine when she spoke to H on
18 30th December.
19 Second, the decision to make the Inquiry about
20 Pendine was the decision made by the police and not the
21 DPP.
22 Third, it was done with the clear expectations that
23 the enquiries would support her account. It was
24 a perfectly proper attempt to verify what she had said.
25 Fourthly, although the GP's statement supported the
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1 account she had given to DC Murphy about the child
2 having suspected mumps, they did not support her
3 statement that the child had either swollen testes or
4 a high temperature with an associated risk of fitting,
5 nor was there any evidence she had seen a doctor at any
6 point between 11th and 22nd December.
7 Fifthly, there was every reason to believe that the
8 defence would seek to exploit those discrepancies and
9 the reaction of the resident magistrate at the hearing
10 on 27th February underscores this. When told about the
11 shortcomings in the GP evidence, he expressed the view
12 that the situation was most unsatisfactory and that it
13 appeared that the court had been misled.
14 There were, we say, very good reasons for the police
15 to carry out a thorough investigation into Mrs McKee's
16 account of the treatment which she said the child had
17 received. This obviously included the treatment which
18 she said the child had received at Pendine during the
19 weekend immediately preceding the date on which she was
20 due to give evidence, and the proof of the pudding is in
21 the eating, because when those enquiries were conducted,
22 it turned out that she was telling lies.
23 To sum it up, Mr Chairman, we say when Andrea McKee
24 invented the story about Pendine, this presented
25 a dilemma for the director. There were already certain
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1 credibility concerns counting against her, not the least
2 of which was that she had made a false statement to the
3 police in the first place and was an accomplice.
4 Although Mr McGrory is right to say that the legal
5 requirement for corroboration of accomplice evidence had
6 been removed by statute, the director was equally
7 entitled to take the view that a judge would be likely
8 to give the jury a discretionary warning of the dangers
9 of convicting on accomplice evidence and that they
10 should look for independent support.
11 Certainly the pleas of guilty tendered by Andrea and
12 Michael McKee would have provided support to her
13 testimony, and it is clear from the evidence that the
14 Director expressly took this into account. He recorded
15 it in terms in his memo of the conversation he had had
16 with Mr McGinty on 18th March. That's 33887.
17 We say the Director can't be accused of failing to
18 take a relevant consideration into account. We say it
19 is not for the Panel to determine whether the weight he
20 attached to the competing considerations was right or
21 wrong. Whilst the Panel is clearly bound to reach its
22 own conclusions about Mrs McKee and the significance of
23 her guilty plea, we say there is no proper basis on
24 which the Inquiry could properly criticise the decision
25 of the DPP on the evidence and information available to
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1 him in 2004 to discontinue the prosecution.
2 The tenth and final decision I want to mention in
3 a sentence is the decision in 2003 not to prosecute
4 Timothy Jameson. No-one has criticised the decision and
5 in our submission it is quite clear that the evidence
6 was insufficient to prosecute.
7 Mr Chairman, those are the submissions I want to
8 make. Can I just deal with two areas where I have not
9 made submissions and don't intend to make oral
10 submissions?
11 I have not dealt in any detail with the decision not
12 to prosecute any of the Land Rover officers for neglect
13 of duty. That's dealt with in detail in our closing
14 submissions and in Mr Kitson's witness statement. We
15 don't understand there to be any criticism of the DPP
16 either in relation to that decision or in relation to
17 the decision not to prosecute Atkinson in 1998 for the
18 tipping-off allegation in the same file, but you will
19 have seen, and it is all spelt out in Mr Kitson's
20 statement, that those decisions were subject to very
21 careful and detailed internal review over quite
22 a considerable detail of time and were ultimately taken
23 by the Deputy Director, Mr Junkin.
24 Secondly, we have today provided to the Inquiry team
25 a letter addressing the litany of errors in the British
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1 Irish Rights Watch submissions. There are 21 separate
2 errors dealing with the DPP alone. Plainly, the letter
3 serves two purposes. One is to incorporate our
4 submissions that each of those allegations should be
5 removed from the version of the submissions that appears
6 in public on the website, because they portray
7 a complete misunderstanding of the evidence and an
8 exaggerated and polemic approach to its analysis.
9 Secondly, substantively we would respectfully invite
10 you to take the contents of that letter into account and
11 incorporate it in our substantive submissions, because
12 you will obviously have to look at their submissions,
13 even if they are not on the website.
14 Mr Chairman, those are the submissions I wish to
15 make on behalf of the PPS.
16 THE CHAIRMAN: Can I just ask you this, Mr Emmerson? When
17 we come to make up our own minds about Andrea McKee, we
18 shall, of course, have to look at all those factors
19 which went into the decision which was made about her,
20 weigh them ourselves, and, if we disagree with them, say
21 that we do and say why we do.
22 I think you accept all that, don't you?
23 MR EMMERSON: Yes. If I can take a paradigm example, you
24 are going to have to decide whether you think she lied
25 about Pendine.
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1 THE CHAIRMAN: Yes.
2 MR EMMERSON: There may be a separate question, there almost
3 certainly will be a separate question about what the
4 implications of that are for her general credibility.
5 THE CHAIRMAN: Or if on another matter we think a different
6 weighting should have been given to it, we must say so
7 and why.
8 MR EMMERSON: That's not a proposition taken in the way you
9 put to me that I would accept. If you are suggesting
10 that the Panel can and should express a view about
11 whether, for example, the Director attached too much
12 weight to the lies and too little weight to the plea of
13 guilty, then in our submission that is outside the terms
14 of reference, but you are perfectly entitled to say you
15 attach less weight to the lies than you do to the plea
16 of guilty.
17 THE CHAIRMAN: Well, we may be arguing about semantics, but
18 if we take the view that we don't attach the
19 significance that the Director or any of those who
20 advised him attached to something, we are entitled to
21 say what our view is and why we take a different view
22 from the view already taken.
23 MR EMMERSON: Yes. Plainly, you will be taking the view in
24 the light of a year-long Inquiry --
25 THE CHAIRMAN: Of course. Of course.
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1 MR EMMERSON: -- where no stone has been left unturned,
2 where you have heard her give evidence and you may have
3 come to a view, for all sorts of other reasons, about
4 whether what she was saying about Atkinson was more
5 likely than not to be true.
6 THE CHAIRMAN: Oh, yes.
7 MR EMMERSON: So in our submission, if you are approaching
8 the matter in that way, it would be wrong to couch any
9 analysis in terms of a criticism of the way the matter
10 was approached in 2004.
11 THE CHAIRMAN: Well, all I say is that if we do form
12 a different view, we shall, of course, make clear that
13 we have had advantages that those who made the decision
14 when they made it did not have.
15 MR EMMERSON: Yes.
16 THE CHAIRMAN: But we still shall have to look as a matter
17 of courtesy in any event to the decision already made
18 and to say how we weigh factors, and if we weigh them
19 differently, that we do weigh them differently.
20 MR EMMERSON: Can I put it this way? You are making
21 a different decision on different material.
22 THE CHAIRMAN: Yes.
23 MR EMMERSON: Some of the material may coincide, but a lot
24 of it will be different.
25 THE CHAIRMAN: Yes.
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1 MR EMMERSON: So in our submission, plainly you will need to
2 consider what took place in 2004, because that's when
3 the lies were told and analysed.
4 THE CHAIRMAN: Yes.
5 MR EMMERSON: But in our submission, it is not necessary for
6 you or right within the terms of reference for you to
7 reach -- to express your view on her credibility in
8 terms which involve an evaluation of the merits of the
9 view that was concluded in 2004, because that would fall
10 foul of the principle that it is no part of the terms of
11 reference to rule on the merits of a prosecutorial
12 decision.
13 THE CHAIRMAN: Again, I think this is a matter of semantics,
14 but if we take the view that a considerable factor was
15 given considerable weight, but we give it less weight,
16 it will be appropriate for us to say so and to say why.
17 MR EMMERSON: Yes.
18 THE CHAIRMAN: It is simply part of our fact-finding
19 exercise, which we do in fulfilment of the duty to the
20 public to say why we reach the conclusions we do.
21 MR EMMERSON: Certainly, sir, there can be no quarrel with
22 the proposition the Panel will need to explain how it
23 has reached the conclusion that it has reached in some
24 considerable detail.
25 THE CHAIRMAN: Yes. Thank you. Then tomorrow at 10.30.
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1 (5.20 pm)
2 (The hearing adjourned until 10.30 am tomorrow morning)
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