On Monday 29th October 2007, the PPS officer dealing with the case, Mr Kitson, (same name but not the Mr Kitson of the Ombudsman’s Office) phoned to say that he had studied my submission and his view was that he would have to go with the Forensic Report and so he wouldn’t be processing the matter further. I argued that the Forensic Report was based in part on the Police Report which Sgt Lindsay had agreed was wrong. I told him that he had admitted as much to the Ombudsman. He said that he hadn’t read the Ombudsman’s Report. I told him it was part of my submission contained in the bound folder of documents. He said that he didn’t have that folder and went on to describe what he did have. I described the evidence folder to him. He said he would look for it and call back. He called back a few minutes later and said he had found it, and had located the Ombudsman’s Report. He said he would study it and go through the case again and he would let me know.
I was dumbfounded. Clearly he had not read my submission. The 11 page submission made no sense without reference to the 120 page evidence folder. The Forensic Reports were contained in the large document so he must have got a Forensic Report from elsewhere. It was beyond madness. I concluded that someone, either inside the PPS or outside the PPS or collectively had told him to bury my submission. His attempt to do so was very amateurish and transparent.
When I had absorbed the implications of what I had just been told, I tried to explain that I had been to every legal agency to have this resolved and no one was prepared to put his head above the parapet with the exception of Mr Kane and he had been told not to do so. I told him that one possible solution was to have the accident re-investigated and if that was done, then the Forensic Report would also have to be changed or withdrawn. I suggested to him that he had the power to call for a new investigation but he wasn’t sure that he could. He would look into it. I’m sure that there is a facility to do so using a facility called RFI which stands for Requests for Further Information. After all, the PPS has had to use RFI in nearly 30% of all Police cases submitted, an indictment I thought of the poor quality of expertise of the Police in preparing cases.
I felt he was on the back foot and I was sure that now he would at least have to read the submission properly before coming to a decision. I was also sure that the PPS would never make a positive decision to prosecute any of the three if they couldn’t even be bothered to read the whole file at their first attempt. Perhaps they would just prefer to deal exclusively with Police submissions, however inadequate they might be.
One of the points covered in my submission included all the evidence that pointed to Carson using his mobile phone, and how the time of the collision was changed from 1450 to 1443 by the Police just after I had started investigating this allegation.
Mr Meehan had been on leave for some considerable time until the beginning of May 2007. During his absence a deputy Senior Investigating Officer had been given a watching brief on the case. On his return, Mr Meehan said that I had been sent a letter by his stand-in in March, but I told him that I hadn’t received it. He sent me a copy which arrived on 29th May, just as I was about to deliver the submission to PPS. It was a summary of the case from the Ombudsman’s point of view and in response to a letter I had written to them on 21st June the previous year. I didn’t have much time to study it but I noticed that he said “the first call recorded on the Command and control serial was at 1452-1453.” This was the Clerkin letter which was dealt with and withdrawn by the new Ombudsman some 5 years later (See Post dated 13 August 2018 “The New Ombudsman’s Response)
I assumed that the police had backed away from their assertion that the first call had been made at 1443 and I quickly sent off an addendum to PPS to say that the Police had changed their mind once again.
I was wrong. When I read the letter fully it was clear to me that the Clerkin had no idea of the current stage of the investigation. It was wrong in nearly every respect. However, to me it was a dangerous letter because if it fell into the hands of the Police some of the other assertions would further reinforce their view that they had done nothing wrong.
I wrote a strong reply and asked for the letter to be withdrawn forthwith. Mr Meehan understood fully my concerns and by way of explanation said that the writer had not been fully updated and didn’t have time to fully read and understand what was now a very thick case file, even though he had said that he had “fully reviewed available evidence.” Why write it then? I had to write back to the PPS and tell them it was a spurious letter from PONI and the newly amended time of 1443 stood.
I needed to firm up the evidence collected by the Ombudsman. It would be needed later for any future Court case, hopefully initiated by the PPS.
Mr Meehan had interviewed Sgt McBride at the outset and asked him about the errors in his Report and Sgt McBride had given various answers. I had been given a verbal briefing of what Sgt McBride had said by way of explanation to some of the questions but I had nothing in writing and I had a very incomplete picture of which excuse applied to which error. It occurred to me that this was essential evidence for the PPS to come to a decision and also for any court in a civil claim.
Mr Meehan assured me that his replies were recorded in his interview notes with Sgt McBride.
I drew up a list of all the errors in his Report and asked Mr Meehan for Sgt McBride’s reply to each point. As well as listing each error in the police Report I included a few extra questions for Mr Meehan to answer. These included:
- At PONI’s request, four questions were referred back to Police for further investigation. Did he ask Police why they had not done so and what was their response?
- Given that all the errors, almost without exception favoured the version given by the Subaru driver, did he ask Sgt McBride why this was?
- Did he point out to Sgt McBride that it was wrong of him to say that some of the errors occurred because he didn’t have the assistance of a Forensic Officer? Did he challenge this assertion since the Forensic Officer was made available.
- Did he ever suggest to Sgt McBride that the admitted errors in his Report should be changed?
- Did he inform the Police that he did not have the resources to properly carry out an investigation into the disputed change of the time to 1443?
- In his Report he had found that “the errors in Sgt McBride Report were administrative.” What did he mean by that?
I sent a copy of the written questions off through my solicitor, with a copy to the PPS and the Coroner and waited for a reply.
Mr Meehan wrote back:
“I have discussed your request with our Senior Investigations Office. The Office of the Police Ombudsman is constrained by Section 63 of the Police Act as to what information may be disclosed and are unable to supply the requested information at this time.”
In summary, any evidence the Ombudsman had acquired during an investigation could be kept secret from the complainant even though it was required to support a case at the DPP, to challenge the officer at a future Coroner’s Inquest, or to secure a claim at a civil court.
The Police had found a perfect way to hide evidence by ensuring it was collected by the Ombudsman. That could not be right.
I got a copy of the relevant Police Act and I wrote back to them the following day:
I have studied Section 63 of the 1998 Police Act together with its amendments in the 2000 Act and I can find no clause that prevents you from supplying the detailed information in the form that I have requested. Section 63 (1) states quite clearly that “No information received by an officer of the Ombudsman shall be disclosed except for the purposes of any criminal, civil or disciplinary proceedings.” I can assure you that I require the information precisely for all three ongoing proceedings, and, if you have any doubts about that you can confirm this with my legal representatives.”
I ended the letter by saying:
I have come to regret profoundly involving the Ombudsman in this case. It seems to me that the Police have been able to resist any real investigation but instead have been able to hide behind a protective wall built by your Report and reinforced by your stand-in’s ill-considered letter written with scant knowledge of the case. The only person who understood the case for what it was appears to be Mr Kane but of course he had to be gagged. It is clear to me that the agencies set up to find justice are just another barrier.”
Mr Meehan replied:
“I have taken advice from Senior Staff in relation to your letter. As explained in my earlier correspondence, legislation does not allow us to give you material from our files except for the purpose of any criminal, civil or disciplinary proceedings – a point you note in your most recent letter. The proceedings relate to “actual” proceedings and not those which are anticipated. Should your legal representatives wish to apply for disclosure of material as part of ongoing proceedings they should do so.” He seemed to have rewritten the Act to prevent disclosure of the evidence. Secondly, I was the complainant and not my solicitor. My solicitor was not employed to deal with the Ombudsman which was my responsibility. ( My Legal team were employed by the Legal Insurance Company under a policy taken out by my brother and they decided which element of the case was paid for by them). Was he suggesting that a complainant had to have a solicitor or the evidence could not be disclosed?
His ruling meant that no evidence held by him could be disclosed to prepare a case. It would only be released when the proceedings had begun. In my view this was nonsense. The evidence he held might be vital and a case might be incapable to be prepared without it. Hiding evidence under this interpretation would be an obstruction of justice and probably a serious criminal offence. In any case, this perverse ruling did not apply in this case because it was already proceeding in the Coroner’s Court and the Civil Court.
He wrote again in February 2008 to my solicitor to say that he had further advice from his Senior Legal Advisor and “felt it would be more appropriate that the Coroner’s Court be the venue for your client’s detailed questions regarding the actions of Police in this investigation.
Later he did send a bundle of documents to the Coroner but the details of his questions to and answers from Sgt McBride were not included. Also not included were the answers to any of the additional questions posed by me.
His covering letter to the Coroner, later withdrawn in 2012 by Dr Maguire as part of his apology to me, found little or no fault with Sgt McBride’s investigation.
I was told later that if my legal team went to court to have the matter resolved they were advised to put both Mr Meehan and Mr Kane in the witness-box and ask them the questions there.
In March 2008, Mr Meehan wrote to say that following a meeting with the legal team, he had written to the Coroner and informed him that a full and comprehensive review of the case and the issues raised was pending. I let the PPS know.
The PPS wrote to say that because of the review, they would “await the conclusion of any proceedings in the Coroner’s Court and any further information relevant to the case which may arise at those proceedings.”
I thought I heard the washing of hands.
The comprehensive review never happened.
The submission made by me to the PPS is still pending.
It has little to do with the subject of this book but it might help to throw some light on the workings of the Police and the PPS and the relationship one with the other. On 26th July 2008 at about 4am, I was awakened by a commotion outside my house. My car had been broken into and, because of the actions of a close neighbour, the police attended and arrested the two alleged perpetrators. The damage had been fairly minimal and I identified a cigarette lighter inside the car which had probably been dropped there by one of the miscreants as he tried to hot wire the ignition. I made a verbal statement to the police, secured the car, watched the two being driven away by the Police and went back to bed. I expected to be called to give evidence when they appeared the following Monday morning in the local magistrate’s Court. A few days later I received a letter from the Victim’s Support Unit offering counselling for any trauma I might have suffered. I kindly refused their offer.
I heard nothing more for over a year when I was informed by the PPS that they intended to prosecute the two for trying to take and drive away my car, and for intending to cause damage to it. One of them was further charged with obstructing a police officer.
One of the accused was not dealt with until April 2010, whilst the charges against the other were subsequently dropped. I assume that there had to be some reason for the delay, but this is not justice. It is not justice for the two men involved, and it is not justice for my neighbour who has had to live with the thought for two years that he would eventually have to give evidence against the two in court. It is no mean feat of courage to be a witness for Police in our society with its tendency to lawlessness and retribution, and no one should be subjected to such delays. I’m sure my good neighbour will be more reluctant to intervene the next time. Such is the slow progress of justice in our society, and such are the consequences. What is the point of Police appealing to the public to come forward to help if they simply can’t act expeditiously on the assistance offered?
In the next post, I will return to Chief Constable Hugh Orde and the involvement of the Public Prosecution Service in the progression of his career.