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Transcript (Afternoon Session)
Hearing: 17th December 2009, day 77
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1 (1.45 pm)
2 THE CHAIRMAN: Mr Underwood, perhaps I should make it clear
3 Sir John will, of course, read the transcript of this
4 afternoon's proceedings. He spent most of last night in
5 hospital and showed great valiance in coming at all this
6 morning. It was against, as you may imagine, the advice
7 of his fellow Panel members.
8 MR UNDERWOOD: Thank you, sir.
9 THE CHAIRMAN: Yes, Mr Wolfe.
10 Closing submissions by MR WOLFE (cont.)
11 MR WOLFE: Yes, sir.
12 I appreciate, sir, that you are familiar with the
13 work of Mr Patten in his report and, indeed, the work of
14 the Oversight Commissioner whose role in terms of
15 supervising the implementation of the so-called Patten
16 reforms was enshrined in the Police Act of 2000, which
17 in turn created the Police Service of Northern Ireland.
18 Just a brief word about that Act. Section 1 of the
19 Act created the Police Service of Northern Ireland, but
20 it did so by saying that the body of constables known as
21 the Royal Ulster Constabulary shall continue in being as
22 the Police Service of Northern Ireland incorporating the
23 Royal Ulster Constabulary.
24 I make that point briefly, sir, in order to simply
25 emphasise that the practical effect of the Act is that
1
1 the PSNI has inherited the legal rights and liabilities
2 of the Royal Ulster Constabulary. So in a real sense,
3 when I make my submissions, I do so on behalf of
4 an organisation that is, in a sense, still with us in
5 that sense, but the PSNI, sir, as you will be aware, is
6 a different organisation in many respects. There have
7 been changes in policing since 1997, and if I can just
8 briefly list those. We have had 50/50 recruitment, in
9 other words, for a number of years, and ongoing, we have
10 had recruitment on the basis of religion, in order to
11 improve the representation of the police force.
12 The ethos of the PSNI --
13 THE CHAIRMAN: It would be more accurate, wouldn't it, to
14 say an aim at 50/50 recruitment, because that balance
15 hasn't yet been achieved, has it?
16 MR WOLFE: No, I don't think -- the aim is not ultimately to
17 achieve 50/50, it is in terms of current recruitment at
18 50/50, yes.
19 THE CHAIRMAN: Has that been achieved now?
20 MR WOLFE: It hasn't. Not yet, it continues.
21 The ethos, sir, of the organisation is more firmly
22 grounded in the human rights context, given the
23 acceptance into United Kingdom law of the Human Rights
24 Act. That clearly forms a part of the training to a
25 much greater and detailed degree than was ever the case
2
1 with the RUC. There is, of course, the enhanced
2 supervision of the organisation through the offices of
3 the Police Ombudsman for Northern Ireland. There is
4 greater democratisation of policing. We have a
5 Policing Board, which is composed -- not alone composed,
6 but composed of political representatives of the main
7 political parties here. We have district policing
8 partnerships and enshrined in law is a requirement on
9 the part of the chief constable and local commanders to
10 consult with those partnerships with regard to local
11 policing plans. So crucially, sir, the change that has
12 been brought to this jurisdiction, if I may say so, is
13 policing by consent whereas previously with the RUC that
14 consent was withheld in no small measure.
15 Operational aspects of policing are now, in some
16 respects, dramatically different, and you have heard
17 some evidence about changes with regard to scenes of
18 crime management, with liaison with forensic
19 specialists. Policy books which were coming in, in 1997
20 or before that, are now absolutely essential, and I know
21 there is a live debate in this case the extent to which
22 they were essential in 1997. Training of detectives has
23 undoubtedly improved with the lessening of the demands
24 on resources which the violence of the troubles brought
25 to the organisation.
3
1 Of course, sir, you will recognise with these
2 changes policing is a different place and you will not
3 be looking at the events of 1997 through a 2009
4 microscope.
5 Now, the welcome changes which Patten has brought to
6 policing in Northern Ireland don't lead to the
7 conclusion that the RUC was anything other than
8 an effective organisation in its time. Members of that
9 organisation, in my respectful submission, and you have
10 heard lots of evidence about it, performed their duties
11 in a professional and courageous manner to the best of
12 their abilities. Over 300 officers paid the ultimate
13 price in being killed in uniform and thousands more were
14 injured.
15 The achievements of the organisation are reflected
16 in section 70 of the Police Act 2000, which remarks upon
17 the sacrifices and achievements of the organisation.
18 Plainly, sir, this is not the place to engage in
19 anything approaching a sophisticated investigation into
20 the standing and performance of the RUC in any general
21 sense. I have made the remarks that I have, sir, as
22 a brief riposte to some of what I unfortunately have to
23 characterise as the calculatingly offensive assertions
24 of the British Irish Rights Watch and the CAJ, who have
25 sought to characterise the RUC, if I may say so, in
4
1 terms which causes one to think that they were all
2 unreconstructed bigots. I hope that doesn't place
3 an unfair interpretation upon their submissions, but
4 that is the interpretation I draw.
5 If I may say just a little bit about the submissions
6 of the British Irish Rights Watch, in a democratic
7 society, sir, the work of an NGO is vital.
8 Non-government organisations such as the CAJ and the
9 British Irish Rights Watch have an important function to
10 perform in highlighting the abuses and wrongdoings of
11 the Executive and the organs of the State. The PSNI
12 welcome the fact that the BIRW and CAJ were given
13 observer status. They will have observed the
14 independent nature of your enterprise and the thorough
15 and rigorous way in which the issues have been pursued
16 in this Inquiry.
17 However, we have grave concerns about how those
18 organisations have presented their written as well as
19 their oral submissions. You heard from us last week,
20 sir, in terms of what we thought of the written
21 submissions, and we have been invited to make our
22 comments in relation to that, but some of those
23 objectionable submissions which were in writing were
24 repeated in large measure by Ms Winter in her oral
25 submissions and have been promulgated on the website.
5
1 It is important to say something about what they
2 have said, not least because in this jurisdiction the
3 CAJ is regarded as a serious and responsible
4 organisation. Its views are listened to both by the
5 public and by Government. It is regularly consulted by
6 public authorities on matters of human rights and social
7 policy. I know that they are granted observer or
8 intervenor status regularly in judiciary views before
9 the High Court in Northern Ireland and are generally
10 regarded as producing excellent work. Indeed, the CAJ
11 has produced an impressive body of research work on
12 a number of areas and it is user influential.
13 It is not for me to say whether those organisations
14 have abused the privilege which the Inquiry extended to
15 them by granting them observer status. However, what
16 they have done in their submissions is to make
17 assertions which are not evidence-based, to make
18 assertions which are sometimes at odds with the
19 evidence, and to make polemic statements which are
20 abusive and amount to no more than name-calling.
21 Let me identify just a small number of them: it
22 seems, sir, like many, perhaps, the Rights Watch and the
23 CAJ commenced the exercise of this Inquiry with perhaps
24 the fixed view that police officers did not emerge at
25 any relevant point from the Land Rover.
6
1 The difficulty which I have with their submission is
2 that the evidence plainly, in my submission, moved
3 beyond that and showed that, not least through
4 Mr Prunty's evidence, but also the police officers'
5 evidence and the evidence of the live radio recording
6 that, you will recall, showed clearly that those
7 officers emerged from the vehicle at a relevant point.
8 By that, I mean at a point when they had the opportunity
9 to intervene to assist Mr Hamill and did intervene to
10 assist Mr Hamill.
11 Therefore, it is passing strange that we received
12 the oral submission from Ms Winter, at page 3, line 1 of
13 her submissions, that they didn't leave the vehicle.
14 They go on to say at page 6, line 1:
15 "In our experience, the Land Rover crew would have
16 been highly atypical if they had been unduly concerned
17 about a young Catholic man getting a beating."
18 In order to maintain their view of this issue, they
19 come up with this alibi suggestion which is repeated so
20 many times in their written submissions I lost count.
21 They seem to be uncritical disciples of what Mr McNeice
22 and Mr Hull have said.
23 Let me take a second example. They have said at
24 page 43, line 16 of their oral submissions:
25 "There was an absence of any genuine concerns to
7
1 bring to book those who murdered Robert Hamill."
2 Well, my riposte to that is -- Mr Adair did it
3 shortly and effectively -- what about the man hours that
4 have been calculated? What about the large number of
5 questionnaires that were circulated? What about the
6 resources that went into the Roman Catholic community to
7 try to get witnesses to come forward? The investigative
8 success in policing terms of getting Jameson and Clarke?
9 What about steps taken by Irwin at very short notice,
10 overnight, to arrange search and arrest teams, to get
11 interview teams set up? The charging of those who we
12 believe were culpable, the effort to maintain
13 Tracey Clarke as a witness. These are just some of the
14 matters which show that those RUC officers did have
15 genuine concern to bring those who murdered
16 Robert Hamill to book.
17 Mr Adair reflected critically upon the evidence of
18 Hull and McNeice and I adopt his submissions in large
19 part. Their lies to the Inquiry to some extent and in
20 their statement are almost understandable in some sense,
21 in that it may have been part of the culture in the
22 community in which they lived to kick the police, to
23 criticise the police without critically analysing the
24 best evidence or information which might have been
25 available, but the British Irish Rights Watch and the
8
1 CAJ are experienced organisations. They have resources.
2 They are staffed by intelligent people. They have
3 trained observers.
4 I ask the question rhetorically: what are they doing
5 with these submissions? If they are serious and
6 responsible organisations, as I believe them to be, they
7 will have to ask themselves whether they are more
8 interested in perpetuating myths or are they interested
9 in discovering the truth?
10 Let me turn now, sir, to the core issues I promised
11 to address, that is the Land Rover crew, Mr Atkinson,
12 the golden hours on debriefing and collusion.
13 Mr Murray at paragraph 4.5 of his report says that
14 the warning that was issued by Mr Mallon was
15 an indication of immediate danger. Mr Adair in his oral
16 submissions suggests that in the words that were used
17 there was no suggestion of impending trouble, but merely
18 of potential trouble, and that in all of the
19 circumstances, if I understand him, the fact that the
20 crew became distracted by a conversation is unworthy of
21 criticism. I think he took it that far. I think at one
22 point he indicated he was unsure sometimes when to make
23 a concession.
24 I think in my respectful submissions on behalf of
25 the PSNI, I fall somewhere in between, but I recognise
9
1 it is a delicate area.
2 I think firstly to deal with Mr Murray, the warning,
3 if I put it in those terms, by Mr Mallon was not
4 an indicator of immediate danger. It was anything but.
5 I share Mr Adair's concerns about the unjust
6 vilification the Land Rover officers have been subjected
7 to. I am conscious, no matter how carefully this
8 Inquiry words its conclusions, that any criticism of the
9 Land Rover crew, no matter how mild, will be translated
10 back by the mischievous many into, "I told you so.
11 Those officers caused Mr Hamill's death".
12 I have accepted in my written submissions on behalf
13 of the PSNI that vigilance was called for, and at
14 page 121 of the composite submissions I have said the
15 Inquiry is entitled to conclude that, by participating
16 in this conversation, the Land Rover crew's
17 concentration became diverted from what they ought to
18 have been concentrating on; in other words, the crew
19 failed to be as vigilant as they reasonably could have
20 been, bearing in mind the purpose of their duties.
21 It was public order duties they were deployed to
22 perform. This was a flash point. They were all aware
23 of the warning, or, with basic communication among
24 themselves, could have been. They all became distracted
25 and they did not all need to be talking or listening to
10
1 Bridgett and Forbes.
2 The question then becomes: how strong should the
3 criticism be? In my respectful submission, you are
4 either vigilant or you are not, but there may be
5 thoroughly understandable reasons why you may not be
6 vigilant and this should inform the degree to which your
7 culpability should be the subject of criticism.
8 We would submit that any criticism should be on the
9 mild side of the spectrum and should be tempered by the
10 following mitigating factors.
11 Consequent upon Mr Mallon's warning, you have
12 Constable Neill's evidence that he looked up
13 Thomas Street. That's at [9396] of his statement.
14 You will be conscious -- and I adopt Mr Adair's very
15 able submissions on this point -- of what I call the
16 good police work vis-a-vis Mallon and his altercation
17 with Bridgett and Forbes, but, unfortunately, that led
18 to a switching off and a distraction.
19 Further mitigatory points that I would put before
20 you, sir, are these. There were no immediate signs of
21 tension on the street. There were certainly people
22 about, people coming up, but nothing in the sense of
23 exchanges or aggression. There is, of course, evidence
24 from Maureen McCoy of people perhaps congregating around
25 the bakery and putting their head round the corner,
11
1 which I think Constable Neill properly conceded that, if
2 he had seen it -- and this is back to the vigilance
3 point -- that would have been a clear warning that
4 something was afoot.
5 These officers had been on duty for coming up to
6 12 hours. They may have made a fatal assumption that if
7 anything was going to transpire, they would hear it, and
8 we have the evidence of Mr Armstrong and your own
9 experiences, sir, and Baroness, in terms of the physical
10 difficulties posed by being stationed in the vehicle
11 THE CHAIRMAN: But wouldn't the Land Rover crew be well
12 aware of that; that you can't necessarily hear trouble
13 brewing, which makes the visual look-out the more
14 important?
15 MR WOLFE: I think it is probably reasonable to draw that
16 inference. They may well have made a fatal assumption
17 that their presence alone would deter violence.
18 A lot has been talked about about the position of
19 the vehicle and some are saying, if it had moved to the
20 bottom of Thomas Street, that would have been the end of
21 the matter. There would not have been a fatal assault.
22 That jars with me a little. The assault could
23 equally have taken place on the other side of the road
24 had they moved. So I don't, on behalf of the PSNI, take
25 the view that their positioning in Woodhouse Street side
12
1 of the road is necessarily a criticism, but what we do
2 find, of course, is they were in a less than optimum
3 position for the exercise of vigilance that we would
4 have expected of them
5 THE CHAIRMAN: But the entrance or the junction of
6 Woodhouse Street -- sorry -- of Thomas Street and
7 High Street would be the first point at which possibly
8 contending parties would encounter one another, wouldn't
9 it?
10 MR WOLFE: Well -- I think that's right. Well, obviously if
11 Protestants coming from the buses and the Coach had
12 walked up the side of the road where Bridgett and Forbes
13 walked up, they might well have been able to, as they
14 arguably did with Mallon, spot a Catholic or recognise
15 a Catholic in the fight. It equally could have started
16 there.
17 THE CHAIRMAN: As long as there were people coming up the
18 other side of the road, the first encounter would have
19 been at the Thomas Street side, wouldn't it?
20 MR WOLFE: I accept that, yes.
21 So if you accepted that the criticism, if any,
22 should be mild for the reasons outlined, I turn to the
23 terms of reference, which in this context prompted
24 question: did any wrongful act or omission by the
25 Land Rover crew facilitate the death of Mr Hamill?
13
1 The use of the word "facilitate", sir, I think is
2 plainly important. I suppose we need to get to grips
3 with what that means. What I say to that is that you
4 must look at the question of whether the attack leading
5 to the death could have been prevented. That's the
6 first thing. You may approach the question by asking in
7 terms whether the attack leading to the death would have
8 occurred even if a high level of vigilance had been
9 maintained?
10 I think there is a number of relevant factors that
11 you would consider if you approached the matter in that
12 way. There is a question of timing. There is the
13 timing in terms of how quickly the fatal attack took
14 from start to finish. There is the question of how long
15 it would have taken for the Land Rover members to debus,
16 had they been vigilant enough to get to the seat of the
17 violence. There is the question of numbers. There were
18 very few police officers compared to very many
19 assailants, and we know that, when officers did make it
20 to the seat of the violence, they were ineffective
21 because of weight of numbers in terms of deterring the
22 violence.
23 There was the ferocity of the attack, which builds
24 into that aspect of it. There is also the nature of the
25 injuries, and we may never know just at what part of the
14
1 sequence of events the fatal blow was occasioned.
2 If you are approaching the question of facilitating
3 the death that's almost a causative question. Was the
4 omission to be as vigilant as they reasonably could have
5 been -- did that make any difference, I think, is the
6 short way --
7 THE CHAIRMAN: Suppose we came to the conclusion that there
8 was a lack of vigilance, and while we could not say
9 better vigilance would have prevented the attack, there
10 was a real chance that it might, are you saying it would
11 be outside our terms of reference to make that finding?
12 MR WOLFE: Sir, I don't approach the terms of reference, on
13 behalf of the PSNI, trying to make any artificial
14 distinctions. I think this is a serious Inquiry. You
15 are entitled to bring to life the terms of reference in
16 a meaningful way which will inform the public, obviously
17 within reason, but I think what you outline, sir, is
18 entirely fair.
19 THE CHAIRMAN: Thank you.
20 MR WOLFE: I think I note in relation to the causative issue
21 in Mr McGrory' submission he states it may at least be
22 reasonable to argue that the spontaneous and vicious
23 nature of the attack may have meant that the omission to
24 be vigilant was not causatively relevant. I note with
25 certainty a rare moment of insight on the part of the
15
1 British Irish Rights Watch where they appear to indicate
2 in their oral submissions at page 2, line 13, that even
3 immediate intervention may not have saved him.
4 Sir, I had proposed to deal briefly with the
5 entirely appropriate acknowledgment by Mr McGrory that
6 the Hamill family recognise that at a relevant point the
7 crew debussed and intervened. I think that is greeted
8 with a palpable sense of relief on this side of the
9 argument.
10 I think it is unfortunate in circumstances where we
11 have known for a long time there was a radio recording
12 of what went on that night, which is one of the most
13 important pieces of evidence, I think, that you will
14 have seen or heard, and that gives a real sense of
15 alarm, concern, fear and activity, and I underline that,
16 activity on the part of the police officers that night.
17 This was not a situation where they stopped to think,
18 "Is this a Catholic victim or a Protestant victim?"
19 They didn't stop to think at all. They became active
20 immediately upon Constable Neill being dragged from the
21 Land Rover.
22 Now, we have the criticism that they should have
23 been vigilant. In my respectful submission, there may
24 be merit in that, but once they were called upon to act,
25 they acted capably, and, in my respectful submission,
16
1 with a reasonable degree of organisation and team work.
2 Now, I know the residual criticism that Mr McGrory
3 brings forward is that the steps they took were
4 inadequate and ill-judged. They did not act quickly
5 enough. They failed to do things they should have done.
6 I am at a loss to know what more they could have
7 done once they emerged from the vehicle. Obviously,
8 sir, as I think you said to Ms Dinsmore this morning,
9 you will consider their actions individually piece by
10 piece. We know that P40, for example, didn't throw
11 himself into the heat of battle. You may have formed
12 your own views about that witness.
13 Whether he was tactically astute or otherwise, in my
14 respectful submission there was a real policing function
15 to be performed at the head of Woodhouse Street. It may
16 not have been the most pressing at that time of actions,
17 but we know that, as events moved on, Reserve
18 Constables Murphy and Adams also took up position at
19 Woodhouse Street. Maybe by that time more Catholics had
20 come on to the street and their role might have been
21 particularly pressing at that time, but I will leave it
22 to you, sir, to work that out, but what I do say in
23 summary is that the performance of all of the Land Rover
24 crew to different degrees is remarkable and
25 praiseworthy, when they did emerge from the vehicle,
17
1 given the exigencies of that particular moment.
2 I think, as you remarked the other day, sir, there
3 was not time for a conference on this. I think that's
4 apt. This was a violent and aggressive situation
5 THE CHAIRMAN: Get out and get stuck in.
6 MR WOLFE: I think that summarises it, sir.
7 Let me move on to Reserve Constable Atkinson.
8 Sir, it is not particularly in the interests of any
9 police force to admit that amongst its number there was
10 a corrupt police officer. It is with profound regret
11 that the PSNI accepts that the weight of the evidence
12 demonstrates that the former Reserve Constable Atkinson
13 is guilty of a significant wrong. The PSNI has
14 considered carefully how it is to frame these
15 submissions, sir. It is conscious that you have a role
16 to perform, a central role to perform, in working out
17 the truth of what is alleged against Reserve
18 Constable Atkinson.
19 Ms Dinsmore, doing her capable best for Mr Atkinson
20 this morning, says there is another way to look at this.
21 Conventional wisdom, of course, is always dangerous, and
22 it would be wrong not to forensically examine the
23 evidence for and against Reserve Constable Atkinson, but
24 if I can be forgiven on behalf of the PSNI in
25 pre-empting what you will be looking at, sir, we say and
18
1 we have concluded, after careful examination of the
2 evidence, that it points determinately in the direction
3 of Reserve Constable Atkinson counselling and supporting
4 a person whom he must have known or suspected was deeply
5 involved in the murderous attack.
6 There are various strands and various layers of
7 evidence which, when taken together, point in that
8 direction. There was the failure to name Hanvey. There
9 is Tracey Clarke's statement. There is proof of the
10 telephone contact. There is the disappearance of the
11 jacket. There are the lies told by Hanvey about what he
12 was wearing and his ownership of the jacket. There is
13 the implausibility of the cover story put forward by
14 Atkinson and the McKees. There are the pleas of guilty.
15 The figure of Reserve Constable Atkinson falls like
16 a dark shadow over the entire incident. It infects
17 everything. Unfairly, it may have had the effect of
18 tarring everybody. It has caused suspicion to fall on
19 his colleagues when it is undeserved. The Inquiry has
20 an important role to play in allaying that suspicion and
21 pointing the finger of blame where it properly belongs.
22 As a police officer, we say his conduct was
23 unforgiveable. It is difficult to find words of
24 opprobrium which are sufficient to reflect the gravity
25 of his offence. The PSNI repudiates his conduct in the
19
1 strongest possible terms, sir.
2 I want to say something -- Ms Dinsmore has touched
3 on it as well -- to do with the motivation which
4 Mr McGrory has suggested -- I don't think he put it
5 higher than that -- might have lain behind Reserve
6 Constable Atkinson's conduct.
7 It is not entirely clear, sir, I would accept, that
8 the question of motivation is at all relevant to the
9 terms of reference. This was appalling behaviour,
10 whatever about the motivation
11 THE CHAIRMAN: Well, I suppose it is relevant in this way.
12 When someone does something which is opprobrious and
13 difficult to understand, before one comes to
14 a conclusion about whether that has happened, one asks:
15 why would that person do it? So motive comes in in
16 assessing the evidence of the fact that the deed has
17 been done.
18 MR WOLFE: Yes. Yes, sir. In my respectful submission --
19 THE CHAIRMAN: You are quite right in saying you don't
20 require to prove a motive, but proof of motive may
21 assist.
22 MR WOLFE: Yes. In my respectful submission, Reserve
23 Constable Atkinson had a perfectly clear motive for
24 behaving in the way he did. This was a criminal
25 conspiracy which was born out of the mutuality of
20
1 friendship and motivated by the desire on the part of
2 Atkinson to protect a young man who was arguably of
3 previous good character, had everything to look forward
4 to in life, was in many respects someone to be looked up
5 to by his peers, clearly a champion in his chosen sport,
6 well thought of by young people at the club, and clearly
7 a trainer of one of Mr Atkinson's children.
8 Now --
9 THE CHAIRMAN: Curiously, that's a motive which Mr McGrory
10 rejected.
11 MR WOLFE: I am conscious of that. I am conscious of that.
12 What we say clearly, sir, is that there is no
13 evidence of a sectarian motivation
14 THE CHAIRMAN: No.
15 MR WOLFE: This does not, of course, dilute the enormity of
16 the crime. We say this was not a crime motivated in the
17 Orange Lodge or in politics or religion. It was a crime
18 motivated by the contacts of the Tae Kwon Do club. It
19 was a conspiracy born there.
20 Mr McGrory, sir, quite properly explored the
21 motivation and it was himself who introduced as his
22 foundation stone the role which police officers were
23 called upon to perform after the Anglo-Irish Agreement.
24 He asked Reserve Constable Atkinson about the impact
25 upon him and his family in terms of policing the marches
21
1 in the mid-1980s around the tunnel, in the Obins Street
2 area of Portadown.
3 He used this as a foundation stone for suggesting
4 there was a rehabilitation motive and, indirectly,
5 a political motivation at work.
6 In my respectful submission, there is no evidence to
7 support the view that Mr Atkinson jumped in the way he
8 did because of any such motivation. I think
9 Ms Dinsmore, with respect, has it right; that there
10 doesn't appear to be any indication in Atkinson's
11 antecedent to support such a view.
12 Mr McGrory tested Kenneth Hanvey when he gave
13 evidence on 11th May, page [134] -- sorry, Mr Atkinson
14 gave evidence on 11th May and at page [134] he declared
15 that he simply would not know how or what Kenneth Hanvey
16 thought of him. Likewise, Kenneth Hanvey, while he did
17 express a negative view on the policing of Orange
18 parades, and expressed the view to Irwin that he had
19 little dealings with Atkinson since he had policed the
20 tunnel, nevertheless didn't express any view about
21 Atkinson in terms of his motivation.
22 I think at page 79 of his oral submissions
23 Mr McGrory was, I suppose, frank enough to say it was
24 merely a potential motive, but in my respectful
25 submission it is a lot less likely motive than the
22
1 friendship motive which I put forward. In my respectful
2 submission --
3 THE CHAIRMAN: It might be said that the motive suggested by
4 Mr McGrory was fraught with risk.
5 MR WOLFE: Well, there are two points on that. This is the
6 rehabilitation point, sir. First of all, there is no
7 evidence to suggest that Kenneth Hanvey was a man who,
8 even if he was minded to do so, was in any position to
9 rehabilitate Constable Atkinson. He was not a man of
10 any great power or authority which could in turn lead to
11 the currying of favour for Mr Atkinson, so far as we
12 know.
13 The second point is this. In order to rehabilitate
14 yourself, information about your, in parentheses, good
15 deeds for your community would need to be promulgated
16 and made known
17 THE CHAIRMAN: That's why I say it is fraught with risk.
18 MR WOLFE: I agree with that view and I am sure you will
19 consider that.
20 Let me move to the golden hour issue.
21 Sir, the role of an inspector or a sergeant in
22 a policing organisation is to provide a supervisory
23 overview and to provide leadership. Mr McCrum in
24 particular has been the subject of criticism in the
25 report of DCS Kennedy, which you can find at 10121 of
23
1 the documents. The criticism is of a lack of
2 supervision, poor scene management and a failure to
3 debrief.
4 Mr O'Connor, who appears on behalf of
5 Inspector McCrum, has defended his client's approach to
6 the issue of debriefing in particular by saying that
7 this was not an abnormal Saturday night, that he was
8 entitled not to carry out a debrief because things were
9 not much different from what one would typically
10 experience on a Saturday night in Portadown.
11 Let me just be clear, because there is a lot of
12 debate about what "debrief" means, and in many ways both
13 Mr Adair and Mr O'Connor sought to defend the position
14 and blame a systemic -- or apportion blame back to the
15 organisation for what they say is a systemic fault here.
16 We say that officers of the rank of inspector and,
17 indeed, sergeant are expected to use their common sense.
18 They are expected to ask questions like: who, what,
19 where and how bad? They are not automatons. They are
20 well trained by the organisation.
21 So when we talk about debriefing, and it is arguably
22 an unfortunate word, because it does -- let's be clear:
23 there are pages and pages of policy and documents about
24 debriefing, and things have arguably improved in terms
25 of the training in debriefing since 1997, but we are not
24
1 talking about any great, sophisticated act of debriefing
2 here. What we are saying is that, at the scene, the
3 who, what, where and how bad questions could easily have
4 been asked.
5 Now, I am conscious that we have former
6 Inspector McCrum's evidence that he spoke to Cooke, that
7 he sought in some sense to find out, but was not told
8 about, the condition of the victims. He says he
9 believes he told the men to compile their notebooks
10 before standing down.
11 This was a relatively small group of police officers
12 who were on duty that night. It would not have been
13 difficult, in our respectful submission, to have found
14 out who was the first-aider who treated or helped to
15 treat Mr Hamill. That, of course, was Silcock. It
16 would not have been difficult to ask questions about,
17 "Who might the likely suspects be? Does anybody know?".
18 Now, this is not about finding scapegoats. There is
19 much to be said in mitigation for Mr McCrum and I have
20 highlighted that in my written submissions at
21 page [525].
22 The steps which Inspector McCrum took to organise
23 and lead his men in the town to calm the situation was
24 excellent police work, which was acknowledged by
25 Mr Murray in his report. It is not that he was
25
1 disinterested in the incident. He made the call at
2 4.00 am to find out about the condition of Mr Hamill.
3 He recognised and worked hard to put in place the
4 necessary foundations for the CID investigation, once he
5 was aware of the injuries. Mr O'Connor has correctly
6 highlighted the fifteen measures that he took after he
7 discovered the seriousness of the injuries. He was
8 plainly a conscientious and hardworking policeman.
9 Mr O'Connor makes the point that the fifteen things
10 that were done after he found out about the seriousness
11 of the injuries indicates what he would have done had he
12 known earlier about the seriousness of the injuries, but
13 we say respectfully that that misses the point. Timing
14 is everything in a situation like this. It is about
15 knowing it was serious as soon as reasonably possible.
16 THE CHAIRMAN: What do you say about the proposition that
17 regardless of how serious the injuries were, the sheer
18 number of people involved, which quite a number of
19 witnesses have said, made it serious?
20 MR WOLFE: I think, sir, the trigger that you have heard
21 about, in terms of when you seal a scene and get CID on
22 board and debrief in a formal sense, seems to have been
23 knowledge of the condition of the victims.
24 THE CHAIRMAN: Yes.
25 MR WOLFE: I think our submission is you have to weigh up
26
1 a number of factors. Any one factor may be relevant.
2 It may well be, sir, that numbers of itself would not be
3 the trigger, but it is a combination of factors that you
4 have to weigh up, and it is about using your policing
5 skill to appreciate when a matter requires obtaining
6 basic information so that the investigation which might
7 inevitably follow can be put on the best possible
8 footing.
9 Within the terms of reference the relevant question
10 becomes whether any act or omission by either P89, who
11 was the sergeant, or former Inspector McCrum, obstructed
12 the investigation of the death and, if so, to what
13 effect?
14 Mr Adair in his submissions suggested possibly that
15 if this information had been known, there might have
16 been steps taken with regard to Lunt and Hobson, for
17 example. You might add Bridgett to that equation.
18 Better information at the time might also have affected
19 the content of the press release, which has been the
20 subject of criticism. It might have led to CID being
21 brought in earlier. It may have led to expedition in
22 the forming of a crime scene.
23 Mr McGrory has suggested that hot pursuit might have
24 been an option. Well, the later actions of P39 might
25 illuminate how you approach this question. The
27
1 information -- any deficit in the approach taken at the
2 scene, in my respectful submission, was reasonably
3 quickly recovered. The officers who had most
4 information to give arguably were the Land Rover crew,
5 but also, of course, we can't forget about Constable A,
6 for example. Any omission was quickly recovered and the
7 information was brought into the system as early as
8 about 8 o'clock.
9 Based on an analysis of that information, it was
10 decided that the best approach was not an immediate
11 arrest or an immediate search strategy, because
12 I recognise they are mutually exclusive. The best
13 strategy was a further building up of the picture
14 strategy, an information strategy or a witness
15 collecting strategy.
16 So, sir, in answer to the question whether the
17 investigation was obstructed by any omission, it may
18 well be that, when you consider it in the round, any
19 omission made little or no difference.
20 Can I deal with one final point before leaving the
21 debriefing issue? I think it is important to deal with
22 this. Mr McGrory in his submissions made the point that
23 the public ought properly to be concerned about the fact
24 that Mr McCrum had been promoted to the rank of chief
25 superintendent.
28
1 Now that issue, in my respectful submission, ought
2 not to have been canvassed in the way it was. It is not
3 relevant to your terms of reference. The fact that
4 an officer may have made a mistake in the exigencies of
5 the moment, and I recognise there is a contention over
6 whether he did make a mistake, which is obviously for
7 you to resolve, but if he did make a mistake in the
8 exigencies of the moment, that does not undermine the
9 attributes which a career in policing would have brought
10 about, and certainly does not undermine the job he does
11 currently and the promotion which no doubt he deserves
12 through the normal processes of the Police Service.
13 Finally, sir, if I can deal, and hopefully tolerably
14 briefly, with the --
15 THE CHAIRMAN: Just before you do, I think Mr Adair says
16 there was nothing wrong with what was done by way of
17 debriefing and he reminded us of what various officers
18 said about what their experience was of debriefing.
19 MR WOLFE: Yes.
20 THE CHAIRMAN: We have seen other officers who say in effect
21 a debriefing means a thorough attempt to get at the
22 facts.
23 If there was a failure properly to debrief, was that
24 a failure of Mr McCrum or the uniformed sergeant or was
25 it a failure of the system, in that the lesson had not
29
1 been brought down and taught to those at the local
2 command level who would tell the troops what to do?
3 What do you say about that?
4 MR WOLFE: You have heard evidence from various ranks about
5 their experience or non-experience of debrief.
6 I candidly accept there are too many views about what
7 "debriefing" means to be healthy, but what we are
8 talking about here is not formal debriefing, or what
9 I am talking about here is not formal debriefing,
10 certainly at that stage, at the scene that night. We
11 are talking about the who, what, where and how bad
12 questions which ought to come as a matter of common
13 sense, certainly to someone of the rank of inspector or
14 sergeant.
15 Now, I think there is confusion over all this,
16 particularly over formal debriefing, over what
17 I describe as appropriate. So I don't accept there is
18 any criticism of the system that's warranted in terms of
19 what I think is apt to be talked about, and that is what
20 you should do on the street at the time in order to give
21 the investigation the best foundation to move forward
22 THE CHAIRMAN: You say in effect that a duty inspector or
23 a duty sergeant should have known full well the simple
24 methods of getting at the facts?
25 MR WOLFE: Well, if somebody punches you in the street, sir,
30
1 you tell the policeman that it was a man in a yellow
2 coat and he ran that way. It is questions along those
3 lines that we would expect an inspector to find out from
4 among the seven or eight police officers who were on
5 duty that night, and if it is impractical to bring them
6 all together, and we don't suggest it would be
7 impractical, we say that communications are such that
8 this could easily have been achieved.
9 THE CHAIRMAN: Can you help me about this? What time did
10 P89 finish dealing with the drunk driver and so become
11 available again for this investigation?
12 MR WOLFE: Sir, I will have that checked. I think it was
13 shortly after 4 o'clock.
14 THE CHAIRMAN: Thank you very much. Yes, you were going on
15 to your next point.
16 MR WOLFE: Yes. I was going to deal with McBurney and the
17 collusion aspect.
18 I suppose, sir, Mr McGrory introduces his allegation
19 in this way. Mr McBurney is guilty of collusive
20 activity because you should not believe that he had
21 a strategy to get at Reserve Constable Atkinson. In
22 fact, his strategy was to bury it.
23 If that allegation survives testing, he says, you
24 then look higher up the hierarchy and you seek to
25 determine whether he was able to persist with this
31
1 strategy of burying the allegation by somebody in higher
2 office such as the chief constable.
3 He recognises, I think, that if you reach the view
4 there was a strategy, and by that I mean a genuine
5 strategy, which was intended, as all investigative
6 strategies should be, to target the source of alleged
7 wrongdoing, if you believe there was a genuine strategy,
8 then I think he would candidly accept that any
9 allegation of collusion, whether against Mr McBurney or
10 indeed the chief constable, must fall away.
11 I don't intend to repeat the powerful submissions
12 which Mr Adair offered in response to Mr McGrory's
13 suggestion. Mr Adair in consummate detail looked at
14 each alleged fork in the road where Mr McBurney is
15 supposed to have taken the wrong turn, but let me offer
16 three points.
17 First of all, sir, there is the Force Order. It is
18 Force Order 17/97 and it is dated 11th April 1997.
19 This is the Force Order which dealt with the handling of
20 telecommunications information. I am sorry I don't have
21 a page number for it. It was a document that was
22 introduced, I think, when Colville Stewart was giving
23 evidence.
24 What it says, sir, at paragraph 7, if I just remind
25 you:
32
1 "It must be fully understood that all information
2 received from telecoms companies is on a confidential
3 basis and must not be disclosed to suspects during
4 interview or any other agency without proper
5 consultation and approval of the TLU. Improper
6 disclosure may lead to a breakdown in relationships
7 between the RUC and the telecoms industry and may lead
8 to civil court action."
9 I make no more of that. Mr Adair says it is
10 a relevant factor to consider when you come to assessing
11 the approach which Mr McBurney took to the interview of
12 Atkinson on 9th September 1997.
13 I think you left with me, sir, a question through
14 Mr Adair in terms of whether -- I looked at the
15 transcript again last night. I think you were asking
16 whether I could perhaps assist in terms of whether
17 a court would be available to get --
18 THE CHAIRMAN: How quickly can we get an order?
19 MR WOLFE: A production type order?
20 THE CHAIRMAN: Yes.
21 MR WOLFE: I have spoken to a retired detective who assists
22 me at the Inquiry. He says at that time,
23 His Honour Hart, who was the Recorder of Belfast at that
24 time, would have had a once a week Friday morning court
25 to facilitate applications for production orders, but
33
1 I rather suspect, sir, like you, if there is something
2 urgently required to progress an inquiry or
3 an investigation, that the judiciary would entertain
4 an urgent application. I don't know from personal
5 experience, but certainly that would be my expectation.
6 That's one point I just wanted to fill in for you.
7 The other point I wanted to look at, I think, was
8 the next sequential fork in the road and that was the
9 interview with --
10 THE CHAIRMAN: Just before you do, how does Force Order
11 17/97 fit with the exercise of the statutory right? Or
12 the statutory power?
13 MR WOLFE: Well, I think the Force Order is designed to
14 explain to detectives how they navigate their way
15 through an interview situation with a suspect. Of
16 course, at this stage the police have got the
17 information from the telecommunications company. So
18 there is no need to go to court to get the document.
19 I think what Mr McBurney was thinking, if
20 I understand the evidence, was: how do you get the
21 matter into court then, once you have charged the
22 suspect and brought it to the next stage? That's where
23 the RUC would have relied upon a telecommunications
24 employee proving the accuracy of the computer function
25 which produces the record.
34
1 Now plainly this matter was better advanced if you
2 didn't need to rely upon the employee and have the
3 suspect producing the record for you. So in that sense
4 I see no particular tension between the Force Order and
5 the legislation.
6 THE CHAIRMAN: Except, you see, that if you get an order,
7 you are entitled then, without the say-so of the
8 telephone company, to use the material and disclose to
9 the suspect what material you have. That's what makes
10 me ask: how does that fit with the Force Order, which
11 seems to take no note of the statutory power?
12 MR WOLFE: It doesn't. I think Mr Adair candidly accepts
13 there was another way in which Mr McBurney could have
14 done this. He could have gone to court and obtained the
15 record. At that stage, the interview stage, it didn't
16 particularly matter.
17 THE CHAIRMAN: It just strikes one as curious that
18 a Force Order doesn't refer to the statutory power or
19 the exercise of the statutory power, which would not
20 inhibit the use of information unless it is said that,
21 even though something is done under compulsion to
22 disclose information, it may still put the discloser at
23 peril.
24 MR WOLFE: Yes. It does seem to be a lacuna, sir. I don't
25 think I can further explain it.
35
1 THE CHAIRMAN: Very well.
2 You are going on to the next stage, Mr McGrory's
3 next stage?
4 MR WOLFE: Yes. That was the interview at which the false
5 alibi was taken. It is just to, if you like,
6 copper-fasten Mr Adair's point, which is, at that point
7 in time, it seems highly unlikely that Mrs McKee would
8 have agreed to either give up herself or give up the
9 other conspirators.
10 I refer, as I think I did in my written submissions,
11 to the letter that was prepared by Colville Stewart on
12 her behalf to the presiding judge at the time of her
13 trial, in which he wrote:
14 "I am satisfied that this backward step", referring
15 to her criminality, "was taken out of misguided loyalty
16 to her husband, which was to change when she and her
17 husband split up and she left the Portadown area."
18 In my respectful submission that information could
19 only have come from her. You find that record at
20 [14463].
21 The next aspect of Mr McGrory's allegation I would
22 like to look at is the so-called duping or subterfuge
23 which he alleged was practised by McBurney, as
24 I understand his allegations, on, for example, Irwin.
25 Mr McGrory recognises, I think, that the evidence
36
1 from Mr Irwin says that there was a strategy. That's
2 what he was told by McBurney. He recognises the
3 evidence, such as it is, through the interview of
4 Mr McBurney with the Inquiry that he says there was
5 a strategy. He recognises the entry made by Mr Irwin at
6 [02395], which is the October 1999 entry which says
7 there was a strategy.
8 Then there is a connecting entry into the records in
9 June 2000, which says in terms there is not going to be
10 an inquest. Essentially, "Let's move forward with
11 this". Mr McGrory recognises the evidence of K, who
12 spoke to the Inquiry about what McBurney told him was
13 his strategy.
14 So he recognises that there was talk of a strategy,
15 that McBurney articulated a strategy, but he says that
16 it wasn't a genuine strategy. In other words, McBurney
17 duped Irwin into believing there was a strategy.
18 It is our respectful submission that these various
19 strands connect to prove that there was a strategy and
20 that it was a genuine strategy. The Panel may in
21 certain respects not like the strategy. It may think
22 that quicker action may have been required, but it
23 cannot be said, in my respectful submission, that the
24 strategy was so unreasonable or so irrational as to defy
25 belief.
37
1 Everyone is in agreement, I think, that having
2 induced, whether by accident or design, Atkinson to use
3 a chain of people to create an alibi, the prospects of
4 breaking the conspiracy by exploiting a weak link in the
5 chain was an investigative breakthrough.
6 Everybody agrees, or seems to agree, to get Atkinson
7 one of these links had to weaken and fracture.
8 Everybody seems to agree that, given Andrea McKee's
9 connection to Tracey Clarke and what happened around
10 8th, 9th, and 10th May, that she was bound to be the
11 weak link.
12 So, in my respectful submission, it was always going
13 to be a matter of timing when you take steps to break
14 that link.
15 Now, Mr McGrory says you ought to have taken steps
16 to break that link in October 1997, when you took the
17 alibi statement, but I say the argument that Mr McBurney
18 defies belief comes down to an argument simply over
19 timing. What we do know is that the "long grass",
20 patient approach worked. It worked from a policing
21 perspective. That is something tangible that you know.
22 That is something the Inquiry can be sure of. It knows
23 that by 1999 the McKees had split up. Arguably,
24 McBurney should have went there, but he did go later and
25 it worked.
38
1 So that is something tangible we can see at the end
2 of a professed strategy which demonstrates that it was
3 not irrational.
4 What we can't be sure about is whether an earlier
5 intervention would have worked in accordance with
6 Mr McGrory's view of the strategy. The evidence from
7 Andrea McKee seems to be that certainly, in 1997, it
8 wouldn't have worked, because she would not have spoken.
9 So, in my respectful submission, McBurney had
10 a strategy. He had a genuine strategy, and if that is
11 correct, then the collusion argument falls flat on its
12 face.
13 Sir, I don't propose to regale you with submissions
14 in respect of the chief constable. I think that has
15 been dealt with. I think what you are faced there with,
16 if you need go that far, and I say you don't need to go
17 that far, because the strategy has been proved, but if
18 you go that far, then you are into having to resolve
19 whether Sir Ronnie has told untruths and for what
20 purpose, and I don't think I can further assist you in
21 relation to that
22 REV. BARONESS KATHLEEN RICHARDSON: Can I just ask one thing
23 about that? Would you say that the fact that McBurney
24 was replaced either helps or hinders the suggestion that
25 there was collusion higher up?
39
1 MR WOLFE: I think that is not something -- I don't think
2 you could draw any inference that the fact that he was
3 replaced undermines his thinking. Clearly, the Police
4 Ombudsman took a view of McBurney which is not a view
5 that binds you, but what we do know is that, in terms of
6 the chief constable's approach to it, he was extremely
7 cooperative with the Police Ombudsman and took the
8 action as soon as they said he should.
9 Now, I can hear Mr McGrory's retort that he was
10 bound to and that doesn't assist the Police Service in
11 terms of any steps it needs to take to rehabilitate the
12 chief constable, but in direct answer to your question,
13 Baroness, I think it is neutral. It does not point
14 either way.
15 THE CHAIRMAN: Can you just help us about this aspect of the
16 strategy? Why did McBurney, having decided that he
17 would interview Atkinson in September, not go into more
18 detail with the allegation, because he had already told
19 the solicitor what he was going to be enquiring about,
20 and Atkinson knew it was about tipping off someone, and
21 if he ought to have gone further then -- first of all,
22 why didn't he? Secondly, if he ought to have gone
23 further than he did, for instance, in October, was
24 anything lost by that?
25 MR WOLFE: Arguably, there was something gained by it, in
40
1 the sense that it induced Atkinson to put this very weak
2 conspiracy around the whole thing.
3 THE CHAIRMAN: The alibi statement was made after the
4 October incident?
5 MR WOLFE: Yes, but September -- and the delay until
6 9th October gave Atkinson that opportunity to do that.
7 Now, Mr McGrory argues that is entirely fortuitous.
8 Atkinson might have come back with an alibi that was
9 completely impenetrable and strong, but certainly,
10 whether fortuitously or otherwise, it fell that it
11 weakened the whole thing and enabled the police to bring
12 it down.
13 THE CHAIRMAN: Yes.
14 MR WOLFE: I am not sure, in answer to the first part of
15 your question, sir, whether I can particularly assist
16 whether he should have pressed him further at that time,
17 sought to get further information at that time.
18 In my respectful submission, there is nothing
19 obviously that was lost by that approach, and
20 ultimately, as it transpired, and again it is for you to
21 assess whether fortuitously or otherwise, that gap
22 allowing Atkinson that opportunity proved to be the
23 making of the case.
24 THE CHAIRMAN: I am not sure that it would be all that easy,
25 would it, to find someone else who would be astute
41
1 enough to take part in a conspiracy and not be easily
2 broken? Whoever is going to take part in it has to show
3 that he is on terms with Atkinson so as to be visiting
4 his house, and that immediately perhaps restricts the
5 number of conspirators from whom you can choose.
6 MR WOLFE: That's right, sir. Obviously we are dealing with
7 two conspiracies here. Anyone who is brought in to
8 support the first is not going to have the strength of
9 will, arguably, as those who share the mutuality of the
10 first, the two criminals.
11 THE CHAIRMAN: Thank you.
12 MR WOLFE: Sir, if I can conclude by saying it is submitted
13 that there is much that was constructive and
14 praiseworthy in the policing response to this incident
15 and its aftermath, although there are some who would
16 have you and the public believe that everything which
17 was done was wrong or corrupt or cynical or collusive.
18 I want to be clear that is it is the PSNI's
19 submission that, with one obvious exception, there was
20 evidence before you that would tend to show that any
21 officer wearing the uniform of the RUC approached their
22 duty in a manner which was everything that one would
23 expect from a decent policing service.
24 It just falls for me to say, sir, finally, a word of
25 thanks, first of all to my colleagues at this side of
42
1 the Bar. Though I have disagreed with many of them on
2 the issues before you, those disagreements have been
3 mostly good-humoured. To Mr Underwood and his various
4 juniors and to Miss Kemish and her team. Together they
5 have worked tirelessly to smooth the bumps on the road
6 along which we have all had to travel and it should not
7 go unsaid that all of our work has been made less
8 challenging for their unstinting efforts and I would
9 like to thank them.
10 We wish the Panel -- I think I speak for all of us
11 in the room -- well with their difficult task of
12 bringing together the volumes of evidence into
13 a workable form.
14 THE CHAIRMAN: Thank you very much.
15 MR WOLFE: I am sure we are all confident, by applying your
16 collective wisdom and experience, you will produce
17 a report that is fair and I am sure we will all look
18 forward to considering and reading it perhaps later next
19 year.
20 Just finally, sir, if I could be permitted these
21 words. Obviously I started out on this journey as
22 junior to Mr Ferguson, QC. As the Inquiry will recall,
23 we were all saddened to learn of his untimely death on
24 26th July. I think it would be remiss of me to leave
25 this desk without recording my thanks for the guidance
43
1 which he gave to me as we set out in representing our
2 client and I know that he will be sorely missed,
3 particularly at this time of the year.
4 THE CHAIRMAN: Thank you very much. We will take a quarter
5 of an hour's break and then we will hear Mr Underwood's
6 reply.
7 (3.10 pm)
8 (A short break)
9 (3.25 pm)
10 Closing submissions by MR UNDERWOOD
11 THE CHAIRMAN: Yes, Mr Underwood.
12 MR UNDERWOOD: Sir, and my Lady, the primary purpose of any
13 Public Inquiry is to a lay public concern. In this
14 instance that concern was that the police may have aided
15 and abetted a murder, possibly for sectarian motives,
16 and that the murder investigation and any prosecutions
17 may have been poorly conducted, again possibly for
18 sectarian motives.
19 I respectfully suggest that a concern of that
20 gravity required the most thorough investigation in
21 order to allay it. I know that in embarking on this
22 Inquiry, you and my team were anxious to uncover all the
23 evidence which could possibly be brought to bear on
24 Mr Hamill's death, its investigation and the prosecution
25 processes.
44
1 For the reasons which I am going to set out in
2 acknowledging the contributions of the family,
3 interested parties and witnesses, if I may be permitted
4 a personal view, that objective has been achieved.
5 It is becoming common form now in these closing
6 submissions to give thanks and acknowledgments. I am
7 certainly not going to buck the trend. My purpose, as
8 I say, in doing that, is to show just how they have
9 contributed to, the, as it were, cleansing nature of the
10 Inquiry.
11 I will start with the family. These are only
12 examples. We have been impressed with the dignity of
13 this family and the stoicism they have displayed in the
14 light of often very unpalatable evidence that has come
15 out. It is obvious, I would suggest, they have an
16 interest here in the truth. They have encouraged
17 witnesses to come forward to the Inquiry. They have
18 ensured that Rosemary Nelson's file was delivered to us.
19 They have continually provided penetrating and helpful
20 lines of enquiry.
21 The PSNI, Richard Ferguson's team, has already been
22 mentioned by my learned friend Mr Wolfe. I readily
23 endorse everything he said about the terrific efforts
24 that have been made for disclosure purposes: statistics,
25 ad hoc disclosure, as well as a very thorough initial
45
1 disclosure process.
2 What's less obvious is that there has been quite
3 a lot of digging around behind the scenes as well. We
4 have had completely untrammelled access to
5 Special Branch computers. We have had access to
6 handlers from Special Branch whom we have interviewed.
7 We have had access to secret documents which, in the
8 ordinary course of events, and I think in most other
9 Inquiries, would have been seen only by the Panel in
10 private session. We have had the facility of having the
11 material we want from those secret documents
12 declassified so that it has come out in public. Nothing
13 has been withheld from us.
14 A number of other people have gone the extra mile.
15 Again, they are unsung in the process here. You have
16 heard quite a lot about Bobby Jameson and what allegedly
17 was some sort of malign influence he might have had over
18 his son in withdrawing his son Timothy's evidence. You
19 know that in the course of that process Bobby Jameson
20 took legal advice. He waved privilege over that, so we
21 had access to his solicitor's files. That was
22 unnecessary.
23 Mr McBurney. You have heard at great length the
24 interviews that were conducted with him. He had one
25 long interview. He went away, found some journals, came
46
1 back for another long interview. He was long retired.
2 It is very easy to forget people didn't have to do that.
3 Yes, we had powers of coercion. No doubt we would have
4 got people here by hook or by crook. He volunteered.
5 So many people did.
6 The press has been terrific, if I may say so. We
7 have had fair and thorough reporting, more or less on
8 a daily basis, throughout these hearings. That has not
9 just had the affect of encouraging interest in this very
10 public process, it has also got witnesses. At least
11 three witnesses have come forward as a result of reports
12 in the press from whom otherwise we simply would not
13 have heard.
14 Counsel and legal teams I will come to. Obviously
15 anybody watching this will have seen the cooperation
16 amongst lawyers here. I have had lines of enquiry,
17 lines of questioning fed to me in a very capable way, if
18 I may say so, and unremitting courtesy and patience.
19 Miss Kemish and I came over in the middle of the
20 session in which people were compiling their written
21 closing submissions. Without exception, everybody was
22 grey and haggard. They were working day and night,
23 often unpaid. I thank them.
24 Finally, I want to thank the BIRW and CAJ, perhaps
25 more controversially. At the outset, they delivered
47
1 extremely helpful submissions to my team. Their role,
2 as I think has been accepted by the PSNI, is perhaps to
3 say the unpopular and challenging thing. They have
4 risen to that, as is, I think, evidenced by the fury
5 they have provoked, I think in some quarters, by their
6 written submissions. Yet Mr Wolfe, in my submission,
7 rightly acknowledged that, for example, in raising the
8 question of whether Sir Ronnie Sir Ronnie colluded, they
9 have voiced something which in some quarters has been
10 taken as truth. As he very fairly said, better this is
11 raised squarely for this Inquiry and dealt with.
12 You may think a lot of what they have raised in
13 their written and oral submissions is completely without
14 foundation, and this will be a very good opportunity to
15 say so in the report and will have the effect, if those
16 things without foundation are believed in some quarters,
17 or even suspected in some quarters, of dealing with it.
18 The consequences of all the assistance that this
19 Inquiry has had really were summed up by Mr McGrory and
20 echoed by others. No stone has been left unturned. We
21 have been very fortunate, and, again, this comes back to
22 the PSNI principally, that the results of unturning all
23 those stones has been publicly shown. Literally nothing
24 has been given to the Panel of material evidence which
25 has not been made public.
48
1 There is, if I may say so, a general satisfaction
2 amongst all those involved in the Inquiry that everybody
3 has had their say. As a result, perhaps, of all of that
4 we are remarkably on time and on budget. In fact, we
5 are a day ahead of time. Whether we are ahead of the
6 budget is another matter.
7 The purpose of my closing words is three-fold.
8 I want to say something about how you may wish to look
9 at evidence. I want to touch on terms of reference,
10 because they have arisen, or, rather, issues have arisen
11 about them in the course of other people's closings, and
12 I just want to highlight in very broad terms the
13 principal issues that appear to remain after these very
14 helpful closing submissions all round and attempt to
15 identify some major opposing contentions, I hope in
16 a neutral way. It is certainly intended neutrally.
17 In looking at how evidence may be approached,
18 a number of people have touched on the way you might
19 treat a witness who is obviously lying, who may be
20 lying, who may partly be lying and partly telling the
21 truth and so forth. Almost every witness has been
22 accused either of having an axe to grind or something to
23 hide. That may be so, and it is worth, of course,
24 saying that, in human nature, when one recounts
25 something which you have been personally involved with,
49
1 you are liable to put yourself in the best light in your
2 recounting of it, and likewise if you are recounting
3 something about friends, family and so on.
4 Equally, if in recounting something you make
5 a statement against your own interest, that's likely to
6 be true. Self-serving statements, self-evidently, are
7 perhaps more open to scepticism.
8 Again, you have pointed this out, sir, time and time
9 again. Part of what somebody says may be true; part may
10 be false. The fact that you conclude that part of
11 a statement or piece of evidence is false does not
12 necessarily wreck the entirety of that evidence, and
13 particularly where you have something which may be
14 substantially true, but which also contains some
15 self-serving parts, it may be entirely possible to
16 reject the self-serving part and leave the rest.
17 Although I have attempted to divide the terms of
18 reference and all the materials into a whole bundle of
19 issues and sub-issues which people have been good enough
20 to address seriatim in their closing submissions, it is
21 perfectly obvious that very many of these are
22 interrelated. So, for example, you may need to decide
23 whether Tracey Clarke gave a false statement to the
24 police on 10th May 1997. That, in turn, is likely to
25 depend on your assessment of Andrea McKee's credibility.
50
1 That, in turn, may depend on your assessment of, for
2 example, DCI K's judgment about her.
3 So while all the issues no doubt, if relevant, will
4 be addressed in their proper order, the idea of simply
5 slicing it up and deciding what you might think on the
6 first one and then moving on is obviously out of the
7 question. This is classically a case of viewing the
8 evidence in the round.
9 Can I move to the terms of reference? Perhaps we
10 could have them up on the screen? The submissions made
11 by Mr Adair, properly, in my submission, asked the
12 question: what do we mean by "wrongful"? It may or may
13 not be helpful to try to define completely perfectly
14 what these terms of reference mean, but if we look at
15 the first three lines, you are asked:
16 "To enquire into the death of Robert Hamill with
17 a view to determining whether any wrongful act or
18 omission by or within the Royal Ulster Constabulary
19 facilitated his death or obstructed the investigation of
20 it, or whether attempts were made to do so; whether any
21 such act or omission was intentional or negligent ..."
22 Pausing there, I would suggest that it helps in
23 defining what is meant by "wrongful" to see that it is
24 either negligent or deliberate. So it at least carries
25 the standard, as it were, of culpability of negligence.
51
1 What the terms of reference do not permit is that
2 a wrongful act can be negligent or just accidental
3 without that degree of culpability.
4 To move on:
5 "... whether the investigation of his death was
6 carried out with due diligence ..."
7 Wrapped together as this phrasing is, I would
8 respectfully suggest that the draftsman of this intended
9 due diligence to have a pretty similar test to wrongful
10 in its negligent meaning. So it would be convenient to
11 say that if something -- if an act or omission was such
12 that no reasonable person could have done the act or
13 made that omission, then it falls to be criticised as
14 either wrongful or as not having been conducted with due
15 diligence.
16 The DPP's case, of course, is rather more baroque in
17 the light of the judiciary view and of the clarifying
18 letter from the Secretary of State. One can view it
19 this way. Firstly, you might want to ask whether an act
20 or omission formed part of the investigation process,
21 and, if it did, then you simply ask the question whether
22 it was attended by due diligence.
23 If it didn't form part of the investigation process,
24 the question is whether it was a prosecution decision or
25 a prosecutorial decision or a piece of prosecutorial
52
1 reasoning, however that is framed. Nobody, I suspect,
2 has satisfactorily managed to find a line between part
3 of the investigative process and a prosecution decision,
4 but it may be necessary for you to do that.
5 If you conclude that something was part of the
6 prosecutorial process rather than investigating, then
7 you have to go on and ask whether it shaped the
8 investigation. Again, Mr Emmerson did the best that
9 perhaps could be done in trying to work out what that
10 means, although I would respectfully suggest he went
11 a little too far. He said in essence something shapes
12 the investigation if a contrary decision should have led
13 to a further or different investigative step. I would
14 respectfully suggest "should" is putting it too high.
15 Where you have a decision which goes one way, and
16 you conclude it went the wrong way, your task will have
17 to be to gauge what you think is likely to or may have
18 happened in the contrary. That, I would respectfully
19 suggest, does not turn on the balance of probabilities.
20 It does not turn on a word like "should". You would be
21 attempting to gauge something that did not, in fact,
22 happen on the basis there was some other starting point.
23 Mr McGrory was castigated by Mr Adair for using the
24 word "speculative" or "speculation" about such
25 a process, but actually that's not far out, with
53
1 respect, because one is necessarily speculating on what
2 would have happened had a different starting point been
3 used.
4 The degree of likelihood you are going to have to
5 apply to what you think might well have been the
6 different outcome is obviously a matter for you, but
7 I respectfully suggest, as I say, "should" puts it too
8 high.
9 Can I then go to the principal issues? Again,
10 I repeat I attempt here to be neutral, and, if I am not,
11 it is my fault.
12 The first one must be: how did this violence start?
13 There is an almost Manichean quality about the way this
14 Inquiry was set up and the way in which contentions were
15 made in the first place which attempts to divide things
16 into black and white. Either this happened or that
17 happened. Again and again, I would respectfully
18 suggest, when one looks at these issues, that may not be
19 the right way of doing it. There are shades of grey
20 here and there are subtleties.
21 Let me put the opposing diverse views here. The one
22 version, the Catholic version it could be called, is
23 that Robert Hamill, D, E, F, Colin Prunty and
24 Maureen McCoy were virtually alone crossing the
25 junction. They were attacked out of the blue without
54
1 any warning and it was over in a flash.
2 The other is broadly that men in that group had
3 a confrontation which lasted some time, with about three
4 Protestants at the junction, which escalated into
5 violence and that was noisy. It took its time.
6 As I say, it is not that black and white, because
7 the Catholic version has its subtlety in it in the body
8 of Maureen McCoy. She has always accepted there were
9 men peeking round the corner at the top of
10 Thomas Street. Also, she has always accepted that F
11 warned her not to go down there.
12 That immediately raises the question why none of the
13 others in the group accept that those things happened.
14 You may want to consider whether they have decided
15 simply that is not something they are going to admit
16 happened, because the outcome of all of this was the
17 death of a family member.
18 There are straws in the wind about this and one of
19 them which might be illuminating is that Beverley Irwin
20 told you -- she was one of the bar staff at Jameson's --
21 that after the violence had pretty much concluded, she
22 saw an older man berating a man for starting the fight.
23 The man he was berating is almost certainly
24 Colin Prunty.
25 There is a concatenation of evidence, of course,
55
1 which pretty well starts with P42's evidence. That's no
2 doubt why a number of people have attempted to diminish
3 or raise his value as a witness. The starting point
4 there, I would respectfully suggest, is the coincidence
5 of him saying what Maureen McCoy says. One lady said to
6 another, "Don't go down there". It would take either
7 a very remarkable coincidence or something quite
8 sinister for him to have created that.
9 Then you have Mr Jones. Now, of course, as
10 Mr McGrory said, we have not heard from him, and, as
11 Mr McGrory also said, this was a man with an axe to
12 grind. He was interviewed by the police the day after
13 his girlfriend's brother was arrested for murder. What
14 he told the police was that his girlfriend's brother was
15 not the instigator. Rather, he was the victim.
16 Giving due credence for the possibility that he was
17 trying to row his girlfriend's brother out of this, you
18 may still think there is a lot of credence in what else
19 he says, because he identified three men whom Mr Prunty
20 told you pretty well fits or fitted with D, Mr Hamill
21 and Colin Prunty.
22 You have also had the evidence of David Woods,
23 Andrew Allen, and, if I can call it evidence,
24 Rory Robinson. It is quite likely you may think that
25 those three were together at the top of Thomas Street
56
1 and that they got involved in the violence at the
2 outset. Again, the starting point of their accounts was
3 that they were first given when they were under arrest
4 for murder. You may think they were likely to exculpate
5 themselves if they had done anything wrong. Again, you
6 may think it is not particularly likely that they were
7 telling the truth if they said they didn't start it.
8 Having seen those witnesses, obviously that's a matter
9 for you.
10 As I say, the concatenation of this is that you had
11 three men who were Protestants, who were at the top, who
12 were involved in violence. You have Mr Jones, who
13 pretty well clearly identifies D, Mr Hamill and
14 Mr Prunty as being involved in that, and that fits
15 rather well with what P42 says.
16 Of course there are discrepancies. Some people have
17 them running, some people have them banging, some people
18 have them squaring up, and that may go to the length of
19 time that this took. It may also go to the level of
20 noise, but it is illuminating that P42, who lived over
21 the British Legion, could hear the confrontation words
22 from where he was, which you may think would also lead
23 to the Land Rover crew being in a pretty good position
24 to hear them.
25 That then leads you to a range of evidence, if you
57
1 accept that concatenation compared with what I have
2 called the Catholic version, which has the potential for
3 the Land Rover crew to be hearing and seeing something
4 from the junction.
5 The next question which arises is: what was the
6 sequence of events that have relevance to the police
7 getting out? It seems clear, although there is some
8 issue about it, that Thomas Mallon did give the warning,
9 and that seems fairly clear the warning was to the
10 effect that his mates were coming from St Pat's.
11 Given it is also clear that the Land Rover was at
12 LR2 at that stage and at least the driver could see up
13 Thomas Street, and the terms of the warning, it seems
14 likely that nobody was visible in Thomas Street.
15 Certainly that's what Constable Neill told you.
16 It is common ground there is then a period in which
17 two things happen: firstly, the police, as it were, sat
18 and oversaw what was happening to Thomas Mallon in the
19 confrontation, for want of a better word, with Bridgett
20 and Forbes, and then they spoke to Bridgett and Forbes.
21 The critical issue seems to be how long they spent
22 speaking to Bridgett and Forbes.
23 Again, there is something of an attempted divide
24 between two versions here. On the one hand, it is said
25 some minutes, and you heard Ms Dinsmore today recite the
58
1 four minutes that Mr Atkinson had attributed to this.
2 You also have, from various sources, the content of the
3 conversation and descriptions of the conversation, in
4 that people regarded it either as chatting or as
5 chatting up. That suggests a few minutes.
6 On the other hand, you have Thomas Mallon, who told
7 you that, after he went on his way briskly, I think he
8 would have you believe, nonetheless he saw the police
9 get out of the Land Rover.
10 If we go back to the map that we normally show on
11 the screen, going up Woodhouse Street he could not have
12 had the Land Rover in view for very long. That's not
13 a very great distance up to the bend in
14 Woodhouse Street, beyond which he could not have seen
15 it.
16 Then you may need to consider whether he is telling
17 you the truth. He could, perhaps, rather than going
18 home, have doubled back. We are, of course, if the
19 police account is right, short of some Catholic
20 witnesses. It is also only fair to say that both
21 Reserve Constable Atkinson and P40 identify Mr Mallon as
22 having been part of the crowd later, because Mr Atkinson
23 says that it was Mallon who pulled Mr Neill from the
24 Land Rover, and P40 says that Mallon approached him
25 later and berated him for letting it happen.
59
1 Of course, there is a striking absence of any
2 witness who is prepared to tell you that they pulled
3 Constable Neill from the Land Rover.
4 Given the nature of what happened when somebody
5 pulled Mr Neill from the Land Rover and the words that
6 were used, it seems very likely, I would respectfully
7 suggest, that something serious had happened before,
8 perhaps that at least one man was on the ground by then.
9 You have been treated to a very great deal of
10 evidence about whether he was on the ground by the time
11 the police got out, whether the violence continued on
12 him after they got out, and about whether the medical
13 evidence assists you on that, and I am not going to
14 travel over that.
15 But there is a separate issue on this, perhaps,
16 which is that it is conceivable that the violence could
17 have been prevented entirely, had the Land Rover crew
18 acted rather than sat and talked to Bridgett and Forbes.
19 The starting point here is what Mr Neill himself
20 told you he thought the warning meant. He thought the
21 warning meant he should get to the top of Thomas Street
22 and that's what he intended to do. Although you have
23 heard some extremely elegant submissions about avoiding
24 the trap of hindsight and this not being an immediate
25 warning and there being an immediate danger to Mr Mallon
60
1 that had to be weighed against it, the starting point
2 has to be, I would respectfully suggest, what Mr Neill
3 thought he should do.
4 You can simply judge him then on the question: why
5 didn't he do it? Did he have a good reason not to? If
6 he didn't have a good reason not to, then was that
7 a wrongful act?
8 If you find that he kept the Land Rover at LR3 where
9 he could not see down Thomas Street, while two men
10 chatted up his observer for three or four minutes, then
11 you may think that was wrongful and you may think it
12 facilitated the death of Robert Hamill, because it
13 prevented him nipping the violence in the bud by being
14 at the top of Thomas Street.
15 Again, of course, it is speculation in the sense
16 that you are being asked to consider what would have
17 happened from some other premise.
18 I move on to the next issue, which is: how was
19 information gathered from the police at the scene? We
20 know that at least two officers at the scene thought
21 Robert Hamill was seriously injured. It may well be
22 more of them did, because it looks like Mr Neill,
23 Mr Silcock and Constable Cornett all attended
24 Robert Hamill in some way and took a serious view of his
25 condition.
61
1 It is also now clear that a number of officers saw
2 people behaving very aggressively, including trying to
3 get at the bodies on the ground, shouting things like
4 "I hope they die". It is also clear from
5 Constable Silcock that allegations were being made at
6 the time about individuals who were still there, never
7 mind the res gestae question for the moment. Just take
8 the allegation directed clearly at Stacey Bridgett,
9 "He's one of those who was jumping on his head".
10 Now if it is right, as seems clear, that people did
11 kick and jump on Robert Hamill's head, then there was
12 likely to be scientific evidence available on the
13 clothes, particularly shoes, of people who had been
14 identified by police at the time.
15 Again, we know all that through hindsight, of
16 course. We also know that neither Inspector McCrum nor
17 P89 grasped any of those matters. With hindsight, their
18 failure to grasp those matters immediately seems to be
19 wrongful, and the issue I would respectfully suggest is
20 whether, in all the circumstances of the night, they had
21 good reason not to grasp.
22 They had to quell a riot. They had to disperse the
23 police officers off to other serious matters. They had
24 themselves to go off to other matters. It is a chicken
25 and egg. If they had asked, they would have realised it
62
1 was a serious assault. Without asking, what they had
2 got to go on was that one ambulance took two people away
3 or more than two people away. The question must be
4 whether a reasonable officer in command was bound to ask
5 the straightforward questions that have been, if I may
6 say so, very economically put by Mr Wolfe: what, who,
7 where, how?
8 Then one moves to the further debriefing back at the
9 station. This was conducted with some degree of skill,
10 one would think, because Mr Bradley, for example, was
11 asked to interview those in the Land Rover, but only
12 three of them were interviewed after making statements.
13 No other uniformed officer at the scene appears to have
14 been interviewed. P89 gave what you may think is
15 a woeful statement. He saw Mr Hanvey, had
16 a confrontation with Mr Hanvey. When he was interviewed
17 by PONI, he told PONI officers that Hanvey had made
18 a complaint, a formal complaint, against him for
19 threatening him with a gun, the sort of thing that would
20 stick in the mind, you may think, of an officer making
21 a statement about the events of that night.
22 So the question then is: was the failure to conduct
23 any meaningful deconstruction, as it were, of what
24 officers had seen and what they knew wrongful and, if
25 so, was that a system failure?
63
1 Sir, you asked Mr Wolfe about that. The position
2 seems to be that you have Senior Officers who knew
3 perfectly well what a debriefing was and how it should
4 work and you had junior officers who had no idea. Every
5 junior officer who came up gave a different answer.
6 They clearly, with respect, had not been inculcated in
7 the system the senior officers thought they were
8 applying. That does, you may think, look systemic.
9 I move now to how statements were taken and I want
10 to concentrate, if I may, on the statements of
11 Tracey Clarke, Timothy Jameson and Jonathan Wright. All
12 of those told you they had been, in essence, made to
13 make false statements. That goes straight to the
14 question: did the detectives who took those statements
15 obstruct the investigation, in Mr Adair's memorable
16 words, by framing people for murder?
17 Without going into the detail of all of those,
18 I would respectfully suggest you are probably going to
19 want to judge that by the demeanour of, and everything
20 you have heard about, the relevant officers: P39,
21 Mr Honeyford, DC McAteer. It was also commonplace for
22 people who had given a statement and then got cold feet
23 about giving evidence would say, "The police made this
24 up. They made me give this statement". You heard that
25 resoundingly from DPP officers and leading counsel. If
64
1 you accept that, that may influence your view on whether
2 DCI P39, Mr Honeyford and Mr McAteer were lying to you.
3 If you conclude any of those statements were taken
4 properly, then you may conclude their contents were
5 true. Of course, it does not necessarily follow. For
6 example, Tracey Clarke told you that one thing she did
7 voluntarily put in the statement was false: namely, the
8 allegation against Allister Hanvey.
9 This question also raises the issue of what was said
10 to whom about Timothy Jameson? Again, there is
11 an attempt to set up a dichotomy here. On the one hand,
12 it is said you have to believe G about everything he
13 says. On the other hand, you must dismiss everything G
14 says.
15 The truth could be more subtle. We have suggested
16 in our closing submissions that it is likely to stick in
17 the mind if the son of a person for whom you are the
18 personal protection officer admits to you he put the
19 boot in in relation to what is quite a celebrated,
20 notorious murder. Equally, it puts you in a fix if you
21 are the close protection officer of that person's
22 father. You are obviously going to want to bring it to
23 the attention of detectives. You are probably not going
24 to want to have it attributed to you.
25 So making a statement and having detectives put that
65
1 statement to Timothy Jameson was fairly unlikely. We
2 also know that G and McCaw, having gone to the police
3 station together, it was Mr McCaw who did the talking,
4 and so it may well be that Mr McCaw decided he would put
5 it rather more obliquely and say, "Detectives, please go
6 and re-interview Timothy Jameson. We think he has
7 something quite important to tell you", and that G
8 either misremembers that or did not perfectly hear it.
9 That takes me to Tracey Clarke and the tip-off
10 allegation. You may think all the trouble to persuade
11 Miss Clarke to come here was well worth it. She was, if
12 I may say so, a clearly intelligent, subtle and troubled
13 lady. Obviously, you are going to form a view about her
14 in general and you have had the great advantage of
15 seeing and hearing from people like Gordon Kerr and
16 Roger Davison, who have had the opportunity at the
17 various other times to see her.
18 There may be a simple way of approaching the tip-off
19 and the inclusion of the allegation in her statement.
20 It is this. As at 9th May, when Miss Clarke started to
21 give her statement, she clearly knew about the telephone
22 call that was made on 27th April. There are two obvious
23 ways in which she could have done that.
24 Firstly, if the McKees made the phone call,
25 Andrea McKee could have told her. If, on the other
66
1 hand, Reserve Constable Atkinson made the phone call,
2 Hanvey could have told her. She told you it was the
3 former of those. That then leads directly to the
4 question: did the McKees make the phone call and did
5 Andrea McKee -- or did Andrea McKee conspire to cover up
6 the truth?
7 It is quite easy to get immersed in close detail,
8 but standing back, this, you may think, is all
9 a question of the plea of guilty of both the McKees.
10 The circumstances you will recall in which Andrea McKee
11 pleaded guilty involved two statements from her which
12 were taken not under caution and then a very elaborate
13 set piece in which DCI K went to Wales on the day
14 everybody else material to this was arrested, having set
15 up an obviously very competent and experienced solicitor
16 who was well briefed and who had every opportunity to
17 advise Andrea McKee of the risk she was running of
18 repeating her account under caution.
19 That solicitor, Mrs Jagger, was in no doubt that she
20 had communicated to Andrea McKee the risk of going to
21 prison for this.
22 Then you have Mr McKee. It is regrettable, of
23 course, that he was not a party to this Inquiry. It is
24 regrettable, too, that he was an alcoholic who may well
25 have had shady recollections, or shadowy recollections,
67
1 I should say, of what had happened, but again, look at
2 the circumstances in which he came to plead guilty.
3 His interview, which was supervised by PONI, was
4 again in the presence of a solicitor, again attended by
5 safeguards. You have heard, in relation to that,
6 Mr Wright, who was the supervisor, who told you it was
7 a very fair interview.
8 Again, looking at this in terms of common sense, if
9 you were a hopeless alcoholic against whom a terrible
10 accusation had just been made of conspiracy to pervert
11 the course of justice, where you have legal advice about
12 the consequences of admitting or denying this, the
13 unlikely thing to do probably is to admit it unless it
14 is true.
15 You have other straws in the wind. There are taxi
16 records which deal with Smith going to town. We know
17 that Mr Smith lived, coincidentally enough, in
18 Thomas Street. Mrs Dinsmore is absolutely right. We
19 don't have the phone records, or, more accurately, we do
20 have the phone records. They are completely illegible.
21 I have seen them. It looks like they were on flimsy fax
22 paper that simply degrades. We can't make head or tail
23 of them.
24 What you do have about this, and you have the
25 reference in the written closings, is that DCI K took
68
1 the view that the record available to him at that stage
2 showed the phone call from the McKees' house to the
3 phone company and you have seen DCI K, of course.
4 "Slap-dash K" is unlikely to be a sobriquet applied
5 to him.
6 You also have the evidence of a number of people who
7 had the opportunity to observe Andrea McKee at close
8 quarters. She made a number, a very great number of
9 statements to the police. She was interviewed by the
10 DPP team. She attended the Magistrates' Court hearing.
11 Pretty well everybody involved in dealing with her at
12 those stages has come before you.
13 DCI K believed, and still believes, Andrea McKee was
14 telling the truth. The DPP believed Andrea McKee was
15 telling the truth about the conspiracy when it
16 prosecuted her and her husband for it. To be fair to
17 it, it doesn't really seemed to have changed its mind
18 about that.
19 Against all of that, of course, you have the fact
20 that the Atkinsons have on oath told you the opposite.
21 You have the fact that both of them are of good
22 character and it is perfectly obvious that Mr Atkinson
23 was a very stalwart police officer, and struggle
24 manfully as everybody has tried to do, nobody has yet
25 come up, I can respectfully suggest, for a pervasive
69
1 motive for him ruining his entire career and having all
2 this brought on his head by making the phone call.
3 It is fair to say his wife worked with
4 Allister Hanvey's father. It is fair to say
5 Allister Hanvey taught his daughter Tae Kwon Do. It is
6 fair to say Allister Hanvey was Michael McKee's protege
7 and Michael McKee was Mr Atkinson's closest friend.
8 It is also fair to say that what Donald Blevins said
9 about him and how would you reconcile what Mr Blevins
10 said about Mr Atkinson with the prospect of him ruining
11 his career for a motive as flimsy as those appear to be.
12 This is one of those black and white issues, because
13 if the Atkinsons made the phone call, then very probably
14 that's how Tracey Clarke got to hear about it.
15 Therefore, its content probably was pretty much what
16 Hanvey said to her.
17 If it was innocent, on the other hand, why go to all
18 the lengths of covering it up?
19 Can I move on then to the way that the police dealt
20 with the tip-off allegation? Even now, there is no
21 direct evidence capable of meeting the criminal standard
22 to establish the content of that telephone call and,
23 therefore, of either a crime or a disciplinary wrong,
24 because, of course, the two had the same standard of
25 proof at the time.
70
1 In those circumstances, it may be difficult to see
2 what Mr McBurney could have achieved by putting the
3 indirect evidence he had to Robert Atkinson or of
4 attempting to suspend him, because he could not
5 prosecute him to conviction and he could not, either,
6 bring disciplinary proceedings against him. Suspending
7 him would have been a pointless exercise in those
8 circumstances, unless he has something else to achieve
9 by doing that.
10 We also know that despite all the very considerable
11 efforts that were conducted in 2000 and so by DCI K,
12 that further investigations would have probably been
13 fruitless.
14 Here again, one should not be blinded by hindsight.
15 The question I pose is: what would a reasonable officer
16 in Mr McBurney's position have done? What would he have
17 thought might be achievable in 1997 in the light of the
18 evidence he had from the phone records?
19 So could and should he have done some more work,
20 which leads to the question: did he deliberately pull
21 his punches in some way and, if so, did he do that with
22 some guidance, tacit or otherwise, from anybody else,
23 particularly the chief constable?
24 These are obviously uncomfortable questions and they
25 may seem to be quite unlikely, far-fetched, but it is
71
1 absolutely right to address them and they have obviously
2 been the subject of considerable evidence.
3 An interesting starting point may be the crime file
4 of which page [9080] is the material page, in which --
5 we saw it yesterday -- Mr McBurney reported to the DPP
6 that Tracey Clarke's contention about the tip-off had
7 a ring of truth about it and that every effort had been
8 made.
9 Again, without too much use of hindsight, that was
10 blatantly misleading. No effort had been made to test
11 it.
12 Mr McBurney had information from a very early point
13 in 1997 to show that Hanvey had given a false alibi,
14 interestingly a false alibi for after the fight. The
15 material he had would have allowed or might have allowed
16 that to be broken, because he had him at the party.
17 Then there were other lines of enquiry which may,
18 you think, have been obvious, such as the conflicting
19 account of what Allister Hanvey was wearing and his
20 assertion, when first interviewed on 7th May, that he
21 only owned one jacket and it was the black one.
22 All of that could, you may think, be directly
23 relevant to the question: was he tipped off to destroy
24 his clothes?
25 Of course, we would respectfully suggest in May 1997
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1 it is quite difficult to say an officer in the position
2 of DCS McBurney would have realised none of those
3 enquiries could reasonably get anywhere. On the
4 contrary, you may think there is reason to believe that
5 they might have gone somewhere in the mind of an officer
6 at that stage.
7 You also have the points put by Mr McGrory about
8 Sir Ronnie. Never mind whether he was straightforward
9 with you in particular. What might he have been saying?
10 Never mind what he told you. If he had a dim view of
11 Rosemary Nelson, if he did have a hand, in June 2000, in
12 Mr McBurney going and speeding up, if you like, the
13 investigation, then he clearly has some interest and
14 some control. If, indeed, he told Mr Langdon that
15 Diane Hamill had an agenda to discredit the RUC, is he
16 doing that to tar her with the Rosemary Nelson brush?
17 What was his knowledge of the allegations?
18 Mr Adair did the inevitably right thing, I would
19 respectfully suggest, by saying it is pretty likely, in
20 fact, inevitable, that McBurney would have told him
21 about the tip-off.
22 Again, though, it is quite easy to get bogged down
23 in melodrama here. The allegation, on the one hand, is
24 this is a very grand conspiracy of the deepest possible
25 dark motives; on the other hand, nothing went wrong.
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1 It is conceivable that Mr McBurney alerted the chief
2 constable on 10th May to the tip-off allegation, told
3 him that it was in the same witness statement as went to
4 the murder and was, on the face of it, reliable and told
5 him that he was also superintending an investigation
6 into the Rosemary Nelson complaint, which was bound to
7 deal with all of these matters.
8 It is entirely conceivable, I would respectfully
9 suggest, that the chief constable was dismayed at
10 hearing that, and if there was any possibility opened by
11 Mr McBurney of treating the murder very seriously and
12 putting this matter on the back-burner, then it is
13 conceivable he would have been given some encouragement
14 in doing that.
15 That would have been wrongful. It would have
16 obstructed the investigation. It is also nothing like
17 as dramatic as the grand conspiracy that might be
18 believed in some quarters.
19 Against all that, you have formidable evidence. You
20 have, I repeat, heard Mr McBurney at great length. You
21 will no doubt have formed a view about his character.
22 You have heard the chief constable give evidence twice.
23 Both of them made it perfectly clear that in their
24 evidence they say they would have rooted out bad apples.
25 You have also got the, as it were, too wide
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1 conspiracy point: namely, that Mr McBurney told anybody
2 who had a real interest in this, ICPC, DPP and
3 Complaints and Discipline. Against that, of course, you
4 have also seen the Complaints and Discipline officers
5 and you may wonder whether any harm was done at all in
6 telling them. Likewise, the ICPC was not supervising
7 it, so he did no harm to a go-slow by telling them, and,
8 of course, telling the DPP went nowhere, because he was
9 not asking for advice, and they would act only on
10 a crime file, and I come back to misleading crime files,
11 they would only act on what he chose to put in the crime
12 file.
13 Again, I don't shrink from using the words
14 "speculation" and "possibility" about this. You will
15 have to find these matters as a matter of fact, but it
16 is right that, because there is public concern about
17 these matters, this is squarely addressed, I would
18 respectfully suggest. There is the evidence both ways.
19 Can I move then to the ICPC? It does seem likely
20 that the RUC attempted to make an Article 8 referral
21 prior to Rosemary Nelson's complaint turning up, but, of
22 course, we have no documentary evidence that was
23 contemporaneous with that. We only have things that
24 look back to it. We also have nothing from the ICPC to
25 suggest that it accepted that referral. The Nelson
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1 complaint, of course, was restricted to the Land Rover
2 officers and it was made in ignorance of the tip-off
3 allegation. You also know that ACC Hall made
4 an informal attempt to get what might be regarded as
5 an Article 8 referral or an extension of the matters
6 being investigated already, and you have what I would
7 respectfully suggest is a very fuzzy understanding on
8 the part of the RUC Senior Officers about how ICPC took
9 on investigations and supervision.
10 It is possible, I would suggest, that the ICPC could
11 have done one of three things. It could have taken
12 ACC Hall's mention to Mr Murnaghan as an Article 8
13 referral. It could have asked for an Article 8
14 referral. It could possibly have told Rosemary Nelson
15 of the tip-off allegation and invited a further
16 complaint in however guarded terms. Absent doing any of
17 those things, it clearly couldn't be seized of the
18 matter. The question you may wish to address is
19 whether, in failing to take one of those courses, the
20 ICPC was negligent or failed in due diligence.
21 Finally, I turn to the Office of the Director of
22 Public Prosecutions. For various reasons, his and his
23 office's involvement in the matters under Inquiry here
24 have been travelled over quite a lot and I will deal
25 with this quite shortly.
76
1 Obviously, as emerged from the dialectic between you
2 and Mr Emmerson yesterday, you are likely to find facts
3 which may be at odds with views taken by the office of
4 the Director, and that's no slur on the office of the
5 Director, because this has been obviously a much more
6 rigorous Inquiry into things than any reasonable
7 Director of Public Prosecutions could ever embark upon.
8 I want to deal only with the question of the
9 Atkinson prosecution, but before I do that, can I just
10 say something in general about the Director's
11 submissions? Obviously, you will weigh them very
12 carefully, and they were put with great skill and care,
13 if I might respectfully say so, but in weighing them,
14 one will need to be very careful indeed in checking the
15 facts.
16 To take an example, on the question of res gestae
17 Mr Emmerson told you yesterday: what was the point of
18 anybody going back to ask Mr Silcock about the
19 circumstances in which he heard the allegation that, in
20 essence, Stacey Bridgett had jumped on the head of
21 Robert Hamill? Because he said it was in essence
22 perfectly obvious that there was such a period between
23 the event, the jumping, and the allegation as to rule
24 this out of court.
25 The difficulty with that, and the thrust of that, is
77
1 that it contains the premise of what was the sequence of
2 the events: namely, that there was a cessation, there
3 was a period in which this could have been in essence
4 concocted, which is a premise that simply was not
5 available, you may think, until all the evidence came
6 out in this Inquiry. It is still not clear whether
7 violence continued after Mr Hamill received his mortal
8 injuries, not entirely clear what the state of violence
9 was when Mr Silcock arrived, not entirely clear at what
10 point in Mr Silcock's dealings with this matter he
11 overheard this. Those are the sorts of questions which
12 might have been asked. I am not suggesting here that
13 you are bound to find that they were bound to ask them.
14 What I am suggesting is that, like everything else, this
15 has to be viewed in the round and the submissions viewed
16 with the care Mr Emmerson, I am sure, believes they
17 deserve.
18 Moving on to the Atkinson prosecution, on the one
19 hand, you have this. The Director himself reasonably
20 believed that Andrea McKee lied about Pendine. The
21 Director specifically got leading counsel, and very
22 senior leading counsel, to consider the precise issue,
23 the precise right issue, we suggest: namely, in the
24 light of that, should the case go on or is this just, as
25 it were, tangential to her evidence?
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1 He plainly considered that advice with care and
2 indeed took the precaution of alerting the Attorney
3 General to his thinking processes.
4 On the other hand, you have these. Mr Morrison told
5 you he believed, as of 18th March 2004, that a jury
6 would probably believe that the McKees entered honest
7 guilty pleas. The Director did not know that, nor did
8 the Attorney General.
9 We also know that where counsel and one of his
10 Senior Officers disagreed, for example, about whether to
11 prefer affray charges against, I think, Robinson, the
12 Director had on occasion arbitrated between his leading
13 counsel and his senior staff.
14 So faced with, on the one hand, counsel telling him
15 that in counsel's view Andrea McKee was shot as
16 a witness, but, on the other hand, his Senior Officer
17 running the case, believing a jury would probably
18 believe she had entered honest pleas of guilty, the
19 likelihood, I respectfully suggest, is he would have
20 arbitrated on that. He was denied the chance. He did
21 not get the information.
22 Then you have Mr Morrison and the medical dealings.
23 Now, as I say, it is obviously right to say that the
24 Director reasonably believed Andrea McKee had lied about
25 Pendine, but the matter did not stop there, because they
79
1 knew on 31st December, I think, 2003, that there was
2 a hole in the account about Pendine, and on
3 9th January 2004 the Director took the precaution of
4 having Christine Smith and Mr Morrison interview
5 Andrea McKee.
6 Virtually the first whole page of notes about that
7 conference go to the detailed history given by
8 Andrea McKee of how ill her child was, how ill she
9 believed her child to be and what the doctors had said
10 to her.
11 You may think that it is such an obvious course to
12 have taken to go back to the GP and check those matters
13 that no reasonable office of the Director of
14 Prosecutions could fail to have done that. On the other
15 hand, you have the account now being propounded forcibly
16 by Mr Emmerson: well, you've got the Pendine line. They
17 accepted the child was ill. So what is the point of
18 going back to GPs who have terrible record-keeping and
19 have already given statements?
20 That's a matter for decision, we would respectfully
21 suggest, because what the GPs had been asked to do
22 apparently was simply give a record of what was in their
23 records as opposed to what they had said, what they
24 remembered.
25 Then you have this issue about what the resident
80
1 magistrate would do. Mr Emmerson conceded that there
2 was at least misunderstanding about that, as I take it.
3 Mr Morrison, in his running account of this, made it
4 clear that he believed that going back to court with
5 Andrea McKee in the knowledge that the DPP had about the
6 Pendine matter was a certain recipe for disaster at the
7 hands of the magistrate. It is quite difficult to
8 discern, I would respectfully suggest, just what the
9 thinking was. Was the view of Mr Morrison certainly
10 that this was going to get thrown out by the magistrate?
11 Was it true that this was a woman who in classic speak
12 couldn't be advanced as a witness of truth, or was the
13 view that this was a woman whom a jury, in fact, wasn't
14 going to believe, and, therefore, the matter should not
15 go ahead?
16 Looking back over the evidence, as you will do, of
17 Mr Morrison, I would respectfully suggest he was not
18 clear at the time about this. Well, it is said against
19 that, of course, so what? He was not the
20 decision-maker. The Director was.
21 But what we do know is, in taking the very great
22 precaution of putting this matter in the hands of the
23 Attorney to see whether the Attorney wanted to direct,
24 the Director himself advanced the summary containing
25 those matters that had been compiled by Mr Morrison.
81
1 You may think if the Director advanced them to the
2 Attorney General, then the Director had read them and
3 might have been influenced by them.
4 Then you have this stand back matter. You may think
5 a lot of people have been shocked by the simple
6 proposition that a woman who has pleaded guilty to
7 a conspiracy and is wanted to give evidence about that
8 conspiracy should not give that evidence because she had
9 lied about her child being ill and taking him to
10 an out-of-hours surgery seven years later.
11 When you look at that and how that matter was
12 addressed, you ask yourself, I would respectfully
13 suggest: what account did the Director take of what
14 Mrs McKee had said and done in the past?
15 What's missing, you may think, is any reference in
16 his thinking processes to the fact that, on
17 8th May 1997, she had gone in the so-called graveyard
18 meeting to detectives and herself given an account that
19 was consistent with what she was now saying. On
20 9th May 1997, she had gone with Tracey Clarke to the
21 police station and supported an account, or at least
22 implicitly supported an account given, which was
23 consistent with what she was now saying.
24 Mr Emmerson makes the point: well, prosecutions
25 can't put in previous consistent statements. "Up to
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1 a point, Lord Copper". It can put in previous
2 consistent statements if recent invention is being
3 alleged against the witness. That was the fear that was
4 held. The fear was Andrea McKee would be put into the
5 witness box and she would be cross-examined to the
6 effect that what she said in October 1997 was true and
7 that, since then, she had invented a false account.
8 So there is, you may think, the possibility that
9 a judge would have been shown and told about what she
10 had said on 8th and 9th May 1997 to reject against that.
11 THE CHAIRMAN: The position is this, isn't it, as a matter
12 of law? The rule which Mr Emmerson speaks of is a rule
13 about admissibility. Evidence cannot be admitted for
14 the purpose solely of showing previous consistency also
15 to rebut an allegation of recent invention.
16 MR UNDERWOOD: Yes.
17 THE CHAIRMAN: That's not to say if, for some other reason,
18 evidence which does, in fact, show consistency is
19 already before the jury, that comment can't be made
20 about that.
21 MR UNDERWOOD: Certainly.
22 THE CHAIRMAN: It frequently is.
23 MR UNDERWOOD: Yes. One sees again and again people
24 re-examined after cross-examination about a recent
25 invention on materials that are already before the
83
1 court.
2 The other matter one looks for in the Director's
3 thinking is consideration given to the fact of the
4 husband's plea of guilty. Again, in a sense, it goes
5 back to the point that Mr Morrison's view about what
6 a jury would think was not squarely placed before the
7 Director.
8 Of course, what weight the Director gave matters was
9 up to him, but if he was bound to give some weight to
10 a matter and he gave apparently no weight to it, then we
11 would say that was a want of due diligence.
12 Of course, in one sense, it flies in the face of
13 reason to say that the Director wanted due diligence.
14 This Director was plainly very diligent indeed, in the
15 sense that he took great pains to get leading counsel,
16 to involve the Attorney General. The question is
17 whether he was properly advised. In particular, did
18 Mr Morrison do a decent job in getting the GPs to
19 confirm or deny what Andrea McKee was saying about the
20 thrust of the illness of her child? What about the view
21 that Mr Morrison had which, as I say, in all likelihood
22 would have led to the Director arbitrating between him
23 and counsel?
24 Now, running through the Director's approach to this
25 entire Inquiry, perfectly reasonably, has been
84
1 an attention to detail about the terms of reference.
2 The question here is: if you were to find that the
3 office of the Director wanted in due diligence in the
4 treatment of the Atkinson prosecution, then query how
5 that could have shaped the investigation.
6 The starting point is -- and this is put in my
7 friend Mr Wolfe's submissions -- the murder
8 investigation of Robert Hamill was continuing.
9 A suspect had been Mr Hanvey. If Mr Atkinson were
10 prosecuted to conviction, it seems to be common ground
11 he would have been facing a very lengthy prison
12 sentence. The way the PSNI puts this is there was
13 a possibility that, at that stage, on conviction, he
14 would give evidence against Mr Hanvey.
15 Now, whether that's speculation, whether it is
16 a sufficient degree of likelihood for you to say, "Well,
17 a decision going that way might have/could have shaped
18 the investigation by furthering an investigation into
19 Mr Hanvey", is obviously a matter for you, but that's
20 the way in which this is put.
21 MR EMMERSON: Could I just interrupt you one moment? I see
22 the transcript picked up Mr Underwood saying this was
23 a submission of the PSNI. I am not sure whether he
24 intended to suggest this was a submission of the PSNI.
25 MR UNDERWOOD: I did and that's confirmed by the PSNI.
85
1 That's all I want to say about the issues.
2 Can I spend 30 seconds or so on the question of
3 recommendations? With mixed feelings, I now hand over
4 to you the entire task of shifting everything you have
5 heard over the last year, 90,000-odd pages of evidence
6 and nearly 1500 pages of written submissions. While
7 that task is being undertaken, my team will be busy,
8 because they are going to begin preparatory work for
9 submissions to you on recommendations. I know that you
10 are anxious to ensure as far as possible that lessons
11 learned from this Inquiry have a real and lasting
12 relevance to policing and criminal justice in
13 Northern Ireland, and the preparatory work will bear
14 that firmly in mind.
15 Thank you very much.
16 THE CHAIRMAN: Thank you.
17 Then that concludes our oral hearings. May I add my
18 own thanks and the thanks of the Panel to all of you who
19 have helped us in our inquisition. We also are deeply
20 indebted to Miss Kemish and her team, as is everyone
21 here. We say thank you to all of you.
22 We shall now consider our report. I am not going to
23 attempt any forecast about how long it will take.
24 I hope critics will bear this in mind. My two
25 colleagues are busy people, quite apart from the
86
1 Inquiry, and they have to attend to those other matters,
2 and that inevitably may cause delays when we are trying
3 to fix appointments for us all to meet when both my
4 colleagues will be available on the same day.
5 We shall try to work with due despatch, but I can't
6 say now and don't attempt to say how long that will
7 take.
8 MR ADAIR: Just before you rise, sir, could I just say on
9 behalf of all the legal representatives that have been
10 present during the hearing, first of all that we all
11 send our best wishes to Sir John and hope that he
12 recovers quickly.
13 Secondly, sir, again on behalf of all the legal
14 representatives, which by definition includes the
15 sceptics, the pragmatists and the conspiracy theorists,
16 our thanks for the way you have conducted this hearing
17 with a blend of courtesy, firmness and fairness
18 THE CHAIRMAN: That's very kind. Thank you very much.
19 (4.35 pm)
20 (The hearing concluded)
21 --oo0oo--
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