|
Neutral Citation No [2012] NICC |
Ref: |
GIL8293 |
|
|
|
|
|
Judgment: approved by the Court for handing down |
Delivered: |
|
|
(subject to
editorial corrections)* |
|
|
IN THE CROWN COURT IN
_______
THE QUEEN
-v-
MARK HADDOCK AND OTHERS
________
GILLEN J
Index
Paragraphs
1 Trial
2-8 The Charges
9-62 Legal Principles
63-81 Facts not in dispute
82-124 Evidence of Robert Stewart
125-167 Evidence of Ian Stewart
168-182 Potential Supportive Evidence
183-185 Independent Evidence
186 Adverse Inference
187-190 Behaviour of Police
191-195 Pollock on Count 7
196-197 The
prosecution case
198 The
defence case
199 Legal
principles governing duress
200-213 Evidence relied on by
the accused
214-223 Verdict
on count 7
224 Pollock on Count 8
225-227 The
prosecution case
228 The
defence case
229-233 Evidence
relied on by the accused
234-244 Verdict
on count 8
245-246 The remaining counts
247-257 Memory
258-259 The Makanjuola Principle
260-276 Accomplices with bad character
277-291 Effect of drug and alcohol abuse
292-333 Lies
334-378 The circumstances of becoming a prosecution witness
379-392 A confusion of crimes
393-424 A confusion of participants
425-504 A confusion of roles and words of alleged participants
505-513 Collusion
514-518 Contradiction with evidence of victims and police
519-523 Demeanour of Robert Stewart
524-531 Demeanour of Ian Stewart
532-552 Verdicts on the remaining counts
553-556 Closing remarks
Trial
[1] This trial commenced on 6 September 2011 and ended on 7 February 2012. In the main the prosecution relied on two witnesses. They were Robert Stewart who was in the witness box for 26 days and Ian Stewart for 30 days.
Charges
[2] There were originally fourteen accused who
faced 37 counts on the indictment dealing with five different aspects of
criminality. I have however dismissed
the charges on counts 11, 12 and 17 touching on two incidents following defence
submissions at the end of the Crown case
in my unreported judgment of R v
Haddock (GILC8403) (“the earlier judgment”) which should be read together
with the current judgment. The 5 issues
under scrutiny were as follows:
[3] Counts
1-8 and 9-11 in connection with the murder of Thomas English on 31 October 2000
· See charges set out in earlier judgment
[4] Neil Pollock is charged with:
·
possession of items intended for terrorist
purposes contrary to Section 32(1) of the
· doing an act with intent to pervert the course of justice contrary to common law on Count 8.
[5] Count 12 in connection with an attack on Keith Caskey on 30 January 1996
Charges dismissed.
[6] Counts
13-16 in connection with an attack on Mr X and Mr WJXon 13 May 1996
See charges set out in earlier judgment
[7] Count 17 in connection
with an attack on Alan Webster on 19 December 1996
Charges dismissed.
[8] Counts 18-37 in
connection with belonging to a proscribed organisation namely the
See charges set out in earlier judgment.
Legal principles
The SOCPA regime and accomplice
evidence
[9] The use of accomplice evidence as a
method of crime control throughout the
[10] In this trial the relevant legislation is the
Serious Organised Crime and Police Act 2005 (“SOCPA”). Sections 71-75 of SOCPA
lay out the statutory provisions relating to defendants who assist in
investigation or prosecution of an offence.
These provisions have been examined in detail in R v P; R v
[11] In
“The essential feature of the new statutory framework
is that the offender must publicly admit the full extent of his own criminality
and agree to participate in a formalised process.”
[12] It is
relevant to note that at paragraph 22 of the judgment in
“There never has been, and never will be, much
enthusiasm about a process by which criminals received lower sentences than
they otherwise deserve because they have informed on or given evidence against
those who participated in the same or linked crimes, or in relation to crimes
in which they had no personal involvement, about which they have provided
useful information to the investigating authorities. However, like the process which provides for
a reduced sentence following a guilty plea, this is a long standing and
entirely pragmatic convention. The stark
reality is that without it major criminals who should be convicted and
sentenced for offences of the most seriousness might, and in many cases,
certainly would escape justice . . . The
solitary incentive to encourage co-operation is provided by a reduced sentence,
and the common law and now statute, have accepted that this is a price worth
paying to achieve the overwhelming and recurring public interest that major
criminals, in particular, should be caught and prosecuted to conviction.”
[13]
Section 73 makes provision for
reduction in an offender’s sentence throughout the
[14] The
dangers inherent in a witness giving evidence against accomplices are well
recognised. They are met, however, by
ensuring that, where appropriate, a jury are given a proper warning of those
dangers and the need to take them into account in their assessment of the
evidence.
[15] If the
prosecution consider core features of the accomplice’s evidence against
co-defendants to be capable of belief, it is entitled to put those witnesses
forward even if they are not considered to be telling the whole truth about
their own involvement. The position is not
altered by the fact that the SOCPA agreement requires such witnesses to fully
admit their involvement and to give truthful evidence even where there is
reason to believe that they may not have been making full admissions or giving
truthful evidence as to the extent of their own involvement. Any such failure to fulfil the terms of their
agreement exposes them to the risk that they would lose the benefit of the
agreement and a proper attack upon credibility in cross examination. It does not however make it an abuse or
unfair for the prosecution to put them forward as witnesses. (See R v Daniels [2011]
1 Cr App R 18 and R v
[16] The Criminal Justice (Northern Ireland) Order 1996 (“the 1996 Order”) abrogated the requirement whereby a full warning in the case of an accomplice giving evidence for the prosecution was necessary under the position at common law. There were a number of compelling reasons in favour of such a reform. They included the fact that a full warning had been required irrespective of the particular circumstances of the case or the credibility of the particular accomplice or complainant. Moreover the highly technical rules relating to the meaning of corroboration had rendered the full warning complex and difficult to understand.
[17] The abrogation of the requirement for full
warnings did not remove the discretion on the part of the judge to warn the
jury to exercise caution whenever he considered it appropriate to do so,
whether in respect of an accomplice or a complainant or any other witness (see R
v Makanjuola (1995) 1 WLR 1348 in paragraph below).
Principles governing accomplice evidence
[18] At the outset I remind myself that a judge
should refer to the fact that the passage of time is bound to affect memory.
Whilst the ability of a witness to recall detail accurately can be an
understandable consequence of the passage of time it is still the prosecution
which bears the burden of proof. This is
also relevant where, as a result of delay, specific lines of inquiry have been
closed to the defence. The disadvantage
this presents needs to be identified and explained to the notional jury by
reference to the burden of proof. Since in this case the incidents under
scrutiny occurred between 11-17 years ago and there is little by way of
documentary evidence touching on the factual events before me. I must be aware of the exigencies of delay to
ensure even handedness.
[19] The principles governing the evidence of
accomplices have been addressed by me in an unreported case of R v Stephen
Leslie Brown [GIL7339] delivered on 3 March 2009. The principles of
law I stated therein were not challenged in the course of an unsuccessful
appeal in R v Stephen Leslie Brown (also known as Stephen Leslie Revels)
[2011] NICA 11.
[20] I commence my review of the legal
principles that must guide my approach to the evidence of the two main
prosecution witnesses Robert and Ian Stewart and indeed all the evidence in
this case by reminding myself that in every instance one starts from the
proposition that the accused are and remain innocent unless and until the
prosecution satisfies the tribunal of fact that their guilt in each individual
case on each charge has been established beyond all reasonable doubt.
[21] Thereafter my first task is to determine
whether or not these two witnesses are so lacking in credibility and thus so
unworthy of belief that their evidence must be rejected. If that is the case then no question of a
Makanjuola warning or supportive evidence will arise because the court has been
unable to place any reliance on them.
The first occasion when I considered that issue was at the conclusion of
the Crown case. I was satisfied at that
stage that the state of the Crown evidence in relation to the charges now
before the court and in particular the evidence of Robert Stewart and Ian
Stewart was not such that I could never properly convict or place any reliance
on it or come to the conclusion that any of the accused was guilty based on one
possible view of that evidence following the conventional principles set out in
the well known cases of in R v Galbraith 73. Cr. App. R. 124 (“Galbraith”),
R v Shippey (1998) Crim. LR. 767 as applied in R v Courtenay (2007)
NICA 6 and Chief Constable v Lo (2006) NICA 3. I was satisfied that I
could never convict on counts 11(a count against Bond of perverting the course
of justice), 12 (the Caskey incident) and 17 (the Webster incident) and I
dismissed those charges.
[22] I must revisit any conclusion of
creditworthiness of the Stewarts which I have made at that stage after hearing
all the evidence in the case, especially any evidence called on behalf of the
accused. I must ask myself if I am
satisfied, beyond reasonable doubt that their evidence is creditworthy before
considering any question of a Makanjuola warning or supportive evidence.
[23] Only if I am so satisfied, should I turn
to the principles governing any warning that it is necessary to give myself
before considering the evidence as a whole in order to establish whether I am
satisfied beyond doubt of the guilt of all or any of the accused.
[24] It is clear in this case that both Robert
Stewart and Ian Stewart must be treated as accomplices in each instance where
they have given first hand evidence. The
general rule is that there is no requirement that accomplice evidence be
corroborated and no requirement that the tribunal of fact warn itself of the
danger of acting on uncorroborated evidence of an accomplice. The old law on such matters was abrogated by
the provisions of Article 45 of the Criminal Justice (
[25] The judge however still retains the
discretion to warn himself to exercise caution whenever he considers it
appropriate to do so, whether in respect of an accomplice or a complainant or
any other witness.
[26] In R v Makanjuola (1995) 1 WLR 1348
Lord Taylor CJ summarised the relevant principles at p. 1351 as follows:
“(1) Section
32(1) (of the Criminal Justice and Public
Order Act 1994) abrogated the requirement to give a corroboration direction
in respect of an alleged accomplice or a complainant of a sexual offence simply
because a witness falls into one of those categories.
(2) It is
a matter for the judge’s discretion what, if any warning, he considers it
appropriate in respect of such a witness as indeed in respect of any other
witness in whatever type of case.
Whether he chooses to give a warning, and on what terms will depend on
the circumstances of the case, the issues raised and the content and quality of
the witness’s evidence.
(3) In
some cases, it may be appropriate for the judge to warn the jury to exercise
caution before acting upon the unsupported evidence of a witness. This will not be so simply because the
witness is a complainant of a sexual offence nor would it necessarily be so
because the witness is alleged to be an accomplice. There will need to be an evidential basis for
suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere
suggestion by cross-examining counsel.
(4) If any
question arises as to whether the judge should give a special warning in
respect of a witness, it is desirable that the question be resolved by
discussion with counsel in the absence of the jury before final speeches.
(5) Where
the judge decides to give some warning in respect of a witness, it will be
appropriate to do so as part of the judge’s review of the evidence and his
comments as to how the jury should evaluate it rather than as a set piece legal
direction.
(6) Where some warning is required, it will be for the judge to
decide the strength and terms of the warning. It does not have to be invested with
the whole florid regime of the old corroboration rules.
(7) It follows that we emphatically disagree with the tentative
submission that if a judge does give a warning, he should give a full warning
and should tell the jury what corroboration is in a technical sense and
identify the evidence capable of being corroborative. Attempts to re-impose the straitjacket of the
old corroboration rules are strongly to be deprecated.
(8) Finally, this court will be disinclined to interfere with a
trial judge's exercise of his discretion save in a case where that exercise is
unreasonable in the Wednesbury sense.”
[27] As to the circumstances in which it may be appropriate for the
judge to give a warning, in Makanjuola Lord Taylor said at page 135:
“The judge will often consider that no special warning is required at
all. Where, however the witness has been
shown to be unreliable, he or she may consider it necessary to urge caution. In
a more extreme case, if the witness is shown to have lied, to have made
previous false complaints, or to bear the defendant some grudge, a stronger
warning may be thought appropriate and the judge may suggest it would be wise
to look for some supporting material before acting on the impugned witness's
evidence. We stress that these observations are merely illustrative of some,
not all, of the factors which judges may take into account in measuring where a
witness stands in the scale of reliability and what response they should make at
that level in their directions to the jury.”
[28] I pause to deal at this stage with a submission made by
[29] Hester’s case concerned the provisions of section 38 of the Children and Young Persons Act 1933 making it possible to receive the evidence of a child not given on oath provided it would not lead to conviction unless corroborated. The court concluded that the unsworn evidence of one child cannot be corroborated by the unsworn evidence of another child. However equally the evidence of a sworn child could be corroborated, as it needed to be, by evidence of an unsworn child provided the jury were directed to approach the evidence with great care. I see no reason why the sworn evidence of each Stewart, for each of whom it is wise to seek supportive evidence, could not similarly provide supportive evidence for each other provided I suitably warned myself of the need to ensure that supportive evidence was independent
[30]
[31] The nature of any warning will depend upon
the circumstances in each case. Hence if
there is evidence of the witness having told a lie, the judge is perfectly
entitled to take into account the circumstances of that lie or the nature of
any unreliability and tailor his warning accordingly. Contrary to
[32] Where however the trial judge has decided to direct the jury that it would be wise to look for some supporting evidence it is incumbent on the judge to identify any independent supporting evidence (R v MB (Appeal against conviction) [2000] Crim.L.R.181(CA(Crim Div)).
[33] In distilling the principles that should govern my approach to such witnesses, I have drawn upon a number of authorities which predate SOCPA including R v Steenson and Others (unreported) Court of Appeal (Criminal Division) 23 December 1986 (“Steenson”), R v Graham and Others (1984) 18 NIJB (“Graham”), R v Gibney and Others (1983) 13 NIJB and (1986) No. 4 NIJB, R v Donnelly and Others Court of Appeal (Criminal Division) (unreported) 17 July 1986 and R v Robson and Others (unreported) LTHCO 264. I have also gained assistance from Archbold 2012 edition at paragraph 4-404 et seq and R v Cairns, Zaida and Chaudhary (2003) 1 Cr. App. R. 38. In doing so I recognise that Parliament must have had these principles in mind when enacting the 1996 Order abrogating the old law on the need for corroboration for accomplice evidence. To that extent the principles that I shall now outline and which were promulgated prior to the 1996 legislation must be viewed in this new context and adjusted accordingly given that they expressly refer to the need for such corroboration.
[34] I recognise that an accomplice may give false evidence out of spite, or he may exaggerate, change or invent an accused’s role in the crime in order to minimise the extent of his own culpability or to include those he senses the police wish to see convicted .He may have ample time and opportunity over many months in prison or under police protection to rehearse false evidence in preparation for his court performance.
[35] In Donnelly’s case Lowry CJ cited Lord Abinger’s famous dictum in R v Farler (1837) 8 C&P 106, 108:
“A man who has been guilty of a crime himself will always be able to relate the facts of the case and, if the confirmation be only in the truth of that history, without identifying the persons, there is really no corroboration at all.”
[36] Whilst that principle was spoken of in the context of the former need for corroboration, nonetheless I must remind myself that both Robert and Ian Stewart must be treated as accomplices who on their own admissions had been present at the planning and implementation of these crimes and would therefore know well the facts of the killing and the other offences if either of them chose at the same time to wrongly implicate any of the accused. That they may have accurately, consistently and faithfully described the circumstances of these events must not be regarded by me as supportive evidence. See also the comment of Gibson LJ in Gibney’s case.
[37] Although I must not attempt to impose a straightjacket of the old common law rules on the need to seek corroboration on an accomplice, I cannot ignore the fact that experience over many years in the criminal courts has revealed to me that accomplices who come to testify on behalf of the prosecution against their accomplices may have such motives as the hope or expectation of benefit to themselves or gratification or revenge or other antipathy towards the accused. I must remind myself of what Lord Lowry LCJ so compellingly asserted in Graham’s case at page 8:
“It can be readily appreciated that a man anxious to purchase immunity may attempt to curry favour with those in a position to secure such immunity for him.”
[38] Lord Lowry added in Gibney’s case at page 15:
“There is an incentive to give good value if a bargain is contemplated.”
[39] It is often difficult to get inside the head of an accomplice. Lord Lowry LCJ in Gibney’s case captured the essence of my experience when he said:
“A man who has been granted immunity … may fear (without foundation, it may be) that the immunity will be withdrawn or that the full terms of his bargain would not be implemented if he does not swear up to his proof. Someone who has been sentenced may believe (possibly quite mistakenly) that his actual stay in prison depends on the evidence he gives. It behoves judges to remember these points and juries must be warned about them.”
[40] The words of Lowry LCJ in Graham’s case at page 17 bear recall:
“Independent evidence which contradicts a Crown witness, even on an irrelevant point, has in fact more probative value against the Crown than evidence which supports the witness could have in favour of the Crown.”
[41] Thus inconsistencies between accomplice evidence and independent evidence are a very important factor even on seemingly irrelevant points.
[42] This has a resonance with what the court said in Gibney’s case at page 14 albeit in a case where the evidence of the witness was unsupported:
“It is a mistake of law to say that one cannot, and of reason to say that one should not, ever be satisfied by the unsupported evidence of such a witness, but the need for care is obvious and his proved unreliability on one part of a case cannot be disregarded when assessing his evidence in respect of another.”
[43] Credibility must be considered in light of all the evidence including his or her personal credibility and character, his or her demeanour in the witness box and the circumstances which led the accomplice to become a prosecution witness.
[44] Steenson’s case is some authority for the proposition that at least in a case where an accomplice has given evidence, there is an onus on the judge to resolve contradictions and inconsistencies in the evidence, to give reasons for reaching conclusions where he has resolved such contradictions or inconsistencies and to apprehend the importance of demonstrable errors in evidence in an assessment of credibility. Thus there is a need to advert to any weaknesses in his evidence. In turn a judge must not unjustifiably discount discrepancies. It is fair to expect the judge to attempt to resolve conflicts of fact which significantly bear on the credibility of the witness. (See also Donnelly’s case). Have there been so many palpable hits on the evidence of Robert and Ian Stewart’s credibility that no verdict based on an assessment which fails to acknowledge that fact can realistically survive? Is their evidence so unworthy of belief that I should dismiss it without embarking on any search for supporting evidence?
[45] I cannot hope in this judgment to rehearse every piece of evidence which was given over the period of many weeks of trial or to advert specifically to every point made in argument on behalf of all of these accused if I am to avoid protracting the judgment to an inordinate and unacceptable length. Nonetheless I must attempt to deal with the salient themes in the evidence and submissions made by counsel even though some may be more worthy of analysis than others.
The liability of secondary parties
[46] The liability of secondary parties in murder or other offences has been the subject of recent consideration by the House of Lords in R v Rahman [2008] UKHL 45 and was cited with approval by Morgan LCJ in Brown’s case at paragraph [60] in the following terms:
“In a case of non-accidental presence at the scene of
a murder by a principal it is necessary to establish the following matters
before a person can be convicted as a secondary party:-
(i) It
must be shown that the accused assisted or encouraged the actions of the
principal;
(ii) The
accused must intend to assist or encourage the actions of the principal;
(iii) The
accused must know or believe that he is encouraging the actions of the
principal;
(iv) The
accused must know or foresee the nature of the acts of the principal;
(v) The
accused must know or foresee that the principal may act with the intention to
kill or cause serious bodily injury.
Joint enterprise is an aspect of the principles of
secondary liability and we agree with the analysis set out in R v Mendez and
Thompson [2010] EWCA Crim 516 at paragraph 17.”
[47] The
subject of secondary liability has been helpfully considered recently in R v
Stringer and Another [2011] EWCA Crim. 1396 where Toulson LJ at paragraph
48 said:
“It is well established that D’s conduct need not
cause P to commit the offence in the sense that ‘but for’ D’s conduct P would
not have committed the offence (see R v Mendez at (23)). But it is also established by the authorities
referred to in R v Mendez that D’s conduct must have some relevance to
the commission of the principal offence; there must, as it has been said, be
some connecting link. The moral
justification for holding D responsible for the crime is that he has involved
himself in the commission of the crime by assistance or encouragement, and that
presupposes some form of connection between his conduct and the crime …”
Delay
[48] I must
remind myself that the passage of time is bound to affect memory. In particular it affects the ability of a
witness to recall detail. This must not
interfere with the fact that the burden of proof remains on the prosecution
throughout the trial. The English murder occurred in 2000 and the Mr X incident
occurred in 1996. Specific lines of enquiry and cross examination of witnesses
may have been closed to the defence as a result of the passage of time. Thus the exigencies of delay need to be
carefully considered again by me at this stage of the trial and accordingly I
have done so.
Adverse
Inference
[49] In this case each of the accused declined to give evidence on his own behalf after being informed by the court that it might draw inferences as appeared proper in accordance with Article 4 of the Criminal Evidence (Northern Ireland) Order 1988 ("the 1988 Order"). I issued the appropriate warning to each of them and counsel on behalf of the accused each confirmed to the court that their respective client had received the appropriate advice on the matter.
The relevant statute
[50] Articles 4(3) and 4(4) of the 1988 Order state where relevant:
“4. The
Court or jury in determining whether the accused is guilty of the offence
charged may-
(a) draw such inferences from the refusal as
appear proper,
(b) on the basis of such inferences treat the refusal as or as capable of amounting to corroboration of any evidence given against the accused in relation to which the refusal is material.”
Principles
of interpretation of the statute
[51] Having considered the authorities opened
to me including Cowan
[1996] QB 373), R v McLernon
(1992) NI 168, Davison & Ors
[2008] NICC 28 and Blackstone 2012 Edition paragraph F19.19 et seq I have distilled the guiding
principles on adverse inference to be as follows:
(i) The
right to silence is still preserved.
(ii) The burden still remains on the prosecution to prove the case beyond all reasonable doubt.
(iii) A court is prohibited from convicting solely because of an inference drawn from the defendant's silence. I must not assume that any of the accused is guilty simply because he has not given evidence. Even where the judge has determined, as in this case, at the direction stage that it is not a case where there are no circumstances in which I could not conceivably make a finding of guilt, I must be convinced at the end of the trial that a prima facie case exists before I could draw adverse inferences from the failure to give evidence.
(iv) If there is no prima facie case shown by the prosecution there is no case to answer. Equally, if parts of the prosecution case had so little evidential value or are so weak that they called for no answer, a failure to deal with those specific matters cannot justify an inference of guilt.
(v) I may regard the inference from a defendant's failure to testify, in effect, as a further evidential factor in support of the prosecution's case. Where supporting evidence is desirable, failure to give evidence can provide that support for evidence of guilt if the evidence against the accused is probative, calls for an answer and the accused can give an innocent explanation if there is one.
(vi) I should not hold against the defendant his silence at trial unless the only sensible explanation was that he had no answer to the case against him which could have stood up to cross-examination.
(vii) It will be open to court to decline to draw an adverse inference from silence at trial and for a judge to direct or advise a jury against drawing such inference if the circumstances of the case justify such a course. But there would need either to be some evidential basis for doing so or some exceptional factors in the case making that a fair course to take. The inferences permitted by the article are only such as appear proper.
(viii) Where the defendant has raised a particular factual or legal defence in interview or in cross-examination by counsel on his behalf, failure to give evidence to support and be cross examined upon it is significant and should be given weight.
[52] Finally in R v McLernon (1992) NI 168 Lord Hutton borrowed the words of a distinguished Australian Judge, Dixon J who said:
"It is proper that a court should
regard the failure of the plaintiff to give evidence as a matter calling for
close scrutiny of the facts upon which he relies and as confirmatory of any
inferences which may be drawn against him. But it does not authorise the court
to substitute suspicion for inference or to reverse the burden of proof or to
use intuition instead of ratiocination."
Good Character
[53] An
accused may lay claim to a good character not only where he can adduce positive
evidence to that effect but also where he can truthfully assert that he has no
previous convictions (R v Assiz [1996]AC 41).
[54] The
principles which should be applied are those set out in R v Vye [1993] 97 Cr App R 134, R
v Aziz [1996] AC 41, R v
[55] Much in this case turned on the word of two witnesses against
that of the accused. Courts have said on a number of occasions (for example, in
[56] I am satisfied that evidence of good character has been adduced
in the case of Wood, Pollock and Hinds who have no previous convictions.
[57] I have
decided also to accord Mark Thompson the benefit of a good character in the
context of this case. He does have a
number of convictions but they are largely for driving matters with one simple
possession of a drug in 1995. These are
all spent matters under the Rehabilitation of Offenders Act 1974 and
accordingly I consider that in fairness he should be given the benefit of a
good character.
[58] Similarly
David McCrum has 7 previous convictions all for road traffic offences and since
I do not consider any of them relevant to the present charges, I believe he
should be accorded the benefit of a good character reference.
[59] Finally
Philip Laffin has 9 previous convictions, again all of a driving nature and
accordingly I have also accorded him a good character reference.
[60] I therefore take into account in all their cases
their good character first in deciding whether I can believe any explanations
made in their statements to the police or in the course of answering questions
in an interview with police. Secondly,
the fact that they are of good character may mean that they are less likely
than otherwise might be to commit the offences with which they are charged.
Bad Character
[61] Prior
to this trial, a satellite judgment by Hart J had admitted bad character
evidence of Haddock. That being the
case, and having reviewed Blackstone 2012 Edition at F12.13 et seq, R v
Hanson[2005] 1 WLR 3169 and R v Edwards [2006] 1 WLR 1524 I consider
that the following principles should be followed by me in considering this
evidence:
·
First, once
evidence of bad character is admitted, questions of weight are for me to now
determine.
·
Secondly, I must
warn myself against the danger of placing undue reliance on previous
convictions.
·
Thirdly, evidence
of bad character cannot be used to bolster a weak case or to prejudice a jury
against the defendant.
·
I must warn
myself against inferring guilt from the existence of such convictions.
·
Whatever the
gateway through which this evidence was admitted, once it passes through that
gateway I may use that evidence for any purpose for which it is considered
relevant.
Contaminated
evidence
[62] It is
essential that evidence remains the witnesses’ own uncontaminated evidence.
That concept is particularly important in this case where I am searching for independent supportive evidence. I
respectfully borrow what Judge LJ said in R v. Momodu (Practice Note
2005) 1 WLR 3442 at paragraph 61 and 62 as follows:
“An honest witness may alter the emphasis of his
evidence to accommodate what he thinks may be a different, more accurate, or
simply better remembered perception of events.
A dishonest witness will very rapidly calculate how his testimony may be
improved. ……………. Recollections change. Memories are contaminated. Witnesses may bring their respective accounts
into what they believe to be better alignment with others. They may be encouraged to do so, consciously
or unconsciously. They may collude
deliberately. They may be inadvertently
contaminated. Whether deliberately or
inadvertently, the evidence may no longer be their own.”
Facts not in dispute
or which I have found:
The Stewart brothers
[63] Prior to their surrender to police on 4 August 2008 the two Stewarts had left New Mossley and for over 11 days had been to Belfast, Bishop Stortford, Scotland, Portrush and Antrim. They had discussed turning themselves into police and admitting their role in the English murder allegedly leaving out Hinds and McCrum.
[64] On 4 August 2008 they handed themselves into Antrim Police Station.
[65] On 5 August 2008 and 6 August 2008, in between interviews with the Historical Enquiries Team (HET) in Antrim concerning the English murder, Robert and Ian Stewart saw their solicitors. HET records record discussion about SOCPA.
[66] On 6
August 2008 they were charged with membership of the UVF and murder of
[67] On 10 September 2008 scoping interviews, 5 in number, were performed mainly about what other offences they had been involved in. They have admitted to this court not telling the truth about the involvement of Hinds and McCrum in the English murder.
[68] 15 October 2008 they signed a written agreement under SOCPA.
[69] 16 October 2008 debriefing interviews commenced continuing through December 2008 leading up to the statements of 4 December 2008. Debriefing on various matters arising from these interviews continued intermittently until April 2010.
[70] They were arraigned in December 2009 on a large number of offences including the English murder and sentenced in March 2010 on a heavily discounted basis on foot of the SOCPA agreement. They have now been released from prison since 18 August 2011.
The Thomas English murder
[71] The senior investigating officer of the
HET gave evidence in a statement read to the court that the murder of Thomas
English was motivated by a feud taking place between the UVF and UDA between
August 2000 and November 2000.
[72] The evidence of Doreen English, which was
largely unchallenged was that on 31 October 2000, she and her husband had in
the earlier part of the day attended her grandmother’s funeral
[73] Later that evening after 6pm, when she was
in her home with her husband, upon hearing a small rap at the back door she
opened it to be confronted by a man putting his arm and shoulder through the
door. This man was about 6 feet tall,
well built, pale skin, with a full top lip and goose pimples on his skin with
light brown hair. He wore a green or
khaki jacket with a corduroy collar in a different colour with black
shoes. This man had a gun in his left
hand coloured black and said “Get out of the fucking road Doreen”. There was a struggle at the back door and this
man and three others pushed past her into the lounge of the house where her
husband Thomas was.
[74] A smaller man had a silver gun. The taller man aimed the gun at her husband
and she attempted to attack him. The
smaller man, wearing a dark jacket, monkey hat and scarf, struck her on the
face with the gun. The taller man at this
stage was attempting to pull his scarf up over his face and his hat down.
[75]
[76]
She also recorded a sledge hammer
being present during the attack.
[77]
[78] In cross-examination she was clear that
all of the men were wearing scarves and black woolly hats. She also described the taller gunman having
diamond type stitching on his jacket and dark shoes.
[79] There was unchallenged evidence that the
hijacked taxi was seen in
The Mr X Incident May
1996
[80] On 13 May 1996 at about 6.45 pm a number of
masked men carrying baseball bats and a hammer entered the home of Mr X. They initially started to hit his son WJX and
then attacked Mr X. His hands were tied with
plastic cuffs. He was thrown over a wire
fence at
[81] Since the detailed narrative of the
Stewarts became the subject of close scrutiny during the various cross
examinations I shall set out the salient aspects of their accounts.
The Evidence of Robert Stewart
The English Murder
[82] A major plank in the prosecution case was
the evidence of Robert Stewart who gave evidence before me over several weeks.
[83]
[84] He recalled the Loyalist feud from the
summer of 2000 starting in the
[85] His evidence was that on the weekend
before
[86] On the morning that
[87] He claimed that his brother said to him
that Mark Haddock had said “This is as good and as bad as it gets”. They then headed off towards Mark Guthrie’s
flat at 10 Ballyvesey Park which was in the same block of flats in which the
witness lived. His recollection was that
Alex Wood had a key but that the door could be pushed open. Guthrie was not present.
[88] Himself, his brother, Samuel Agnew and
Philip Laffin were standing at the door of the living room and the rest of the
group were standing around a settee.
There was a double-barrelled shotgun and two handguns present.
[89] The next thing he recalled was a telephone
call coming through to Reggie Miller about the shooting of a UVF man on the
[90] The
witness’s evidence then was that “the next thing I knew the name Tommy English
had appeared”. First mention of
[91] The
witness claimed that at this stage he was “sort of panicking a bit because that
was the first time I had been in a position like that and I wasn’t particularly
listening too much”.
[92] He
described discussions amongst the other group agreeing that it was going to be
English to be killed and how it was to be done.
He claimed that himself, his brother, Agnew and Laffin were not part of
that discussion. At this stage the
witness asserted “I wasn’t really thinking of too much you know what I mean, I
was trying to keep my head down and not say anything. In a position like that you just don’t want
to be asked to do anything.”
[93]
[94] The
witness described Haddock then leaving to obtain crisps/sweets/chocolate/Coca
Cola in a shop about 2 minutes away before 3.00 pm.
[95] Upon
his return the witness claimed then that Haddock asked who wanted to do the
killing and Bowe, Wood and Loughlin offered to do so. Darren Moore said he would drive down. He thought they were bursting to do it right
from the start.
[96] He
claimed that later on Haddock said that a taxi needed to be hijacked and it
would then need to be burnt out. According
to the witness he was “running the whole thing “until 4.00 pm when he left with
Miller and Bond. Wood then allegedly
took over.
[97] So far
as the proposed hijacking of the taxi was concerned the witness said he and his
brother were to hijack the car, Laffin was to drive the hijacked taxi back to
the 4 killers and Higgins’s job was to burn the taxi once it had returned to
the estate from the murder scene.
[98] The
witness then said that Bond and Miller went out to get white spirit which was
necessary to burn the car and a sledge hammer to break down English’s back
door.
[99] Prior
to that, the witness claimed that he thought Haddock had suggested that he and
Moore should go to ascertain the easiest entrance to English’s house, either
his front door or his back door. Since
[100] In the
flat there were five balaclavas, surgical gloves, black gloves, and maybe some
coats to wear. He thought the gloves
came from Darren Moore’s house.
[101] Just
before 4.00 pm Miller, Bond and Haddock left.
Bond said “Good luck”. Haddock
said “Try to miss the kids” with a smirk on his face.
[102] The
witness therefore described two teams namely the “hit” team of Bowe, Loughlin,
Wood and Moore and the hijacking team of himself, his brother, Philip Laffin
and Samuel Agnew/Higgins.
[103] In terms
of the hijacking, the witness said that maybe he decided or they decided
amongst themselves what to do.
[104] Bowe had
the shotgun, Loughlin had the sledge hammer, Wood had the nine millimetre
pistol and
[105] He
described Bowe saying that he could not wait until it was over so he could go
back home to get a kebab. The group
watched, “The Weakest Link” on television before going. The crisps and coca cola bottles were in a black
liner bag which they decided to burn because there might be fingerprints. He could not remember who told him to burn
them but it was probably Wood.
[106] After
4.00 pm, the witness and his team were the first to leave about
5.45/6.00 pm. It was the plan that
they should telephone a taxi at the shops.
The witness thought that Philip Laffin did this. Stewart thought that he was carrying the
white spirit and that he threw the rubbish over a hedge instead of burning
it. This occurred at the area of the
flats where the hijacking was to take place.
The witness placed the white spirit at the side of the flats. He was the only one with a balaclava and the
others had scarves/hats/socks on their hands.
He said that with his big nose, he was slightly more noticeable and he therefore
had the balaclava.
[107] He also
had a replica gun which Wood had handed to him before he left. This was a metal replica and Wood probably
gave it to him between 5.30 pm and 6.00 pm.
The taxi was called for 6.10 pm.
They stood at the door waiting for the taxi. His brother Ian and Sammy Agnew went to the
taxi when it arrived and brought the taxi driver back to the flats. They had both got into the taxi. Then his brother Ian, Agnew and himself took
the man. Laffin got into the taxi and
drove it away. They took the taxi driver
through two doors, down a path and a lane into a field. The witness said to the driver that if he did
nothing he would be all right and put the imitation weapon to him. He and his brother remained with the taxi
driver. Higgins went to look for the
white spirit but could not find it and told the witness that it was
missing. The witness then went to look
for it but it was not there.
[108] He
claimed that they had held the taxi driver for 15/20 minutes and then they
heard an ambulance and police car coming. They knew that something had happened
to Tommy English. At that stage they
made off. He could not remember
precisely what he said to the taxi man but it was something like “stay there
for 5-10 minutes”.
[109] He
believed that Agnew was still there but he was not sure if he went to burn the
vehicle without the white spirit. He
thinks that he did not see Laffin again.
[110] The witness
described him being “in a flap”. They
went to Hinds house, rapped the back door and asked him to get rid of the
gun. He did not think he told him what it
had been used for. Hinds agreed to do
so. At that stage he thought that
himself, Agnew and his brother were there.
He thought that Hinds had put the gun under a plant.
[111] The
witness and his brother then went to McCrum’s house. The witness had gone out with the accused
McCrum’s sister.
[112] The
following day the witness described waking up in McCrum’s house being too fearful
to remain in their own homes. He was
summoned to the Community House in
[113] Moore
and Loughlin were shouting at him because the taxi had not been burned and
Miller tried to calm them down. The
witness claimed he told them that his job was to hijack the taxi and that he
had done. There was also concern about
the rubbish bag which they thought might contain a sticker from the sledge
hammer which had been taken off. Loughlin
had left the sledge hammer at the door of English’s house. He was then ordered to retrieve the bag. However when he returned to the area there
were about 50 police officers therein so he walked on. The following day Wood and himself went to
the flat and found the sticker so there was no longer any worry about the bag
of rubbish.
The Mr X
Incident
[114] The
Mr X incident was dealt with by Robert Stewart in interviews of
10 September 2008, two interviews of 18 October 2008, an interview of 19
November 2008 and three of 20 November 2008.
He claimed that this was one of the incidents that he remembered better
than others although he recognised his memory was not perfect since it had
happened 15 years ago.
[115] Robert
Stewart recalled himself and his brother
being taken in a car driven by Miller –
although he was not 100% sure – with Wood in the car and going to Mount Vernon
in 1996.
[116] They
went to the bottom of a lane at an end house close to where Bond and Haddock
lived. There were approximately 10-15
men there. He thought that Haddock said
a child molester was in that house. All
the people there were UVF members. They
had been brought down to kidnap this man because no one knew them in the area.
They were to take the victim out the back of his house by car, and transfer him
into another car.
[117] The
witness could not remember if he was told this or whether it came third
hand. He had a metal baseball bat. Himself, his brother, Wood, Bond and Miller
went in to the victim’s house. He was
not sure if he rapped on the door or whether the door was kicked in. There was an old man there in the living
room. On the settee was a girl and a
baldish man.
[118] Himself,
Wood and his brother hit the old man.
The woman was screaming. The
witness hit the man who was balding with a bat a couple of times and told him
to keep out of it.
[119] Miller
and Bond tried to put tie wraps onto the man but they would not hold. He was lying down on the hall when they tried
to put these on him. They then went out
the back and over a fence into a lane.
The four of them pushed him over.
He landed on top of his brother.
Mark Thompson was in a blue Escort waiting for them. The man was put on the floor at the back of
the vehicle with their feet on top. In
the car was his brother, himself, Wood, Bond and Thompson.
[120] The car
drove up a hill and pulled in on the right hand side. Haddock was there. The victim was taken out of the car into
another car. A man called Elliott was
the driver with Bond in the front. Wood,
his brother, Mark Thompson and himself were in the back. They drove up the
[121] Once
they reached Larne they went to the
[122] The
witness said they subsequently heard that the flat had been raided after they
left and everyone was lifted by the police.
He thought this was “a bit convenient.”
The Webster
Incident
[123] See
earlier judgment where I dismissed the charges arising out of this matter
The Caskey
Incident
[124] See earlier
judgment where I dismissed the charges arising out of this matter.
The
evidence of Ian Stewart
[125] Ian Stewart, now 41 years of age, gave
evidence of knowing the accused as follows:
·
Haddock (as commander of the North Belfast UVF),
Miller (as second in command of the North Belfast UVF), Bond (as far as he knew
was a member of the brigade staff in the North Belfast UVF), Wood (as commander
of the New Mossley UVF), Loughlin (as a member of the UVF), Laffin ( as a
friend and member of the UVF) and Higgins (as a member of the UVF) since 1995.
·
Moore whom he knew at school from 1992/1993
and as a member of the UVF.
·
Bowe whom he had
seen in 1997/1998 and did not know him until about the year 2000. He claimed he knew him through the murder of
Thomas English.
·
Pollock. He claimed not to know him.
·
Hinds and McCrum (as the brother of his
brother’s girlfriend) since 1998.
·
Thompson whom he
knew through his brother from 1993.
[126] Ian Stewart claimed that he had been a
member of the UVF since 1995 having joined because he was seeking protection
from the UDA (which he had originally joined).
He had asked Darren Moore if he could join the UVF. He was told on New Year’s Eve 1995 by Mark
Haddock that he was in the UVF and sworn in in March 1996 with 3 others in the
kitchen of Mark Haddock’s house in
The English murder
[127] He claimed that this incident was imbedded
in his mind. Stewart recalled 31 October 2000 when he and his brother had
been cleaning windows that morning.
After lunch in his flat in Carntall Rise, Billy Loughlin arrived with a
request from Wood to come to the shops at New Mossley straightaway and to wear
old clothes. Arriving at the shops
sometime after 1.15pm he found Haddock, Miller, Bond,
[128] He recalled Haddock saying “This is the
worst and the best it gets lads” at a time when his brother was beside him. He was not sure what this meant and could not
remember if he had discussed this statement with his brother. Haddock was looking for a flat for them to go
to and Wood suggested Mark Guthrie’s flat in
[129] Stewart recalled a black BMW in a car park
at the shops which he recognised as Haddock’s car.
[130] Moore went into the kitchen for about 5
minutes with a mobile telephone speaking
to his father and saying that Bertie Rice had been shot and something had to be
done about it. The witness claimed he
did not know who Bertie Rice was. When
[131] Ian Stewart claimed that himself, his
brother, Agnew and Laffin were sitting on chairs on the far left of the living
room where the television was. Haddock
was standing in the middle of the room and the others were in different parts
of the living room.
[132] The witness then recalled about 2.15pm
Haddock bringing out a sawn off shotgun from inside his jacket and three
cartridges. It was a side by side double-barrelled shotgun. Miller brought out a black handgun from
inside his jacket, maybe a 9 mm pistol, with a clip of bullets which he set on
the floor. Haddock had a dark heavy
black coat knee length and unzipped his jacket before removing the gun. Miller
had a darkish jacket waist length. They
were close to him when guns were produced.
He later added that
[133] A couple of minutes later Haddock and Bond
left about 2-2.15 to obtain some crisps and lemonade for the people in the
flat, returning about 10 minutes later.
[134] Some balaclavas and gloves had also been
laid on the floor. The witness recalled
that the balaclavas and the gloves had been brought by Wood, Bowe and Miller
from inside the jackets of these men including a
[135] The witness said that everyone remained in
the flat. After the crisps had been
eaten, Haddock asked Miller and Bond to get a sledgehammer and some methylated
spirit. A discussion then took place
about what English looked like during and after the eating of the crisps.
[136] The witness declared that shortly after this
Haddock asked Miller and Bond to fetch the sledgehammer and spirit about 3.00
pm. They were away approximately 15-20
minutes and returned with these materials. Miller carried the sledgehammer and
set it down near the guns and Bond carried the methylated spirits.
[137] The witness recalled a discussion about who
was going to shoot English instigated by Haddock and Wood. Haddock wanted to know who would be up for the
shooting and asked who wanted to go down “and shoot this bastard”. Wood, Bowe and Loughlin volunteered to
shoot English and
[138] About 4 pm Wood told
·
Himself, his
brother Agnew and Laffin that they would be hijacking a taxi, him and his
brother holding the taxi driver.
·
Laffin to drive
the taxi back to Ballyvesey and that his taxi would be used to travel in to
shoot English.
·
Agnew to burn the car.
·
That the location
was
[139] Agnew left at about 3.30pm for 5- 10 minutes
to take the spirits up to
[140]
Haddock wished to look at English’s
house and he Moore and his brother went to Ballyfore Park in
his brother’s car where he claimed English lived. Accordingly they left the flat about 3.15 at
a time when everybody else who had been named at the steps were there and were
away for about 15 minutes.
[141] When they returned Haddock said he saw the
house front and back, enquired from
[142] Approaching 4.00pm, Miller, Bond and Haddock
prepared to leave. Haddock told Wood
“Try not to shoot the kids. Make sure
you get the fucker”. He said this with a
smile on his face. The witness asserted
that Wood, Loughlin and Bowe were laughing.
Bond said “Good luck lads”.
Thereafter Miller, Haddock and Bond left about 4.00 pm.
[143] Shortly after 4.00pm, Bowe put the
cartridges into a shotgun and Wood the clip onto the handgun. Loughlin was running around the living room
with a real handgun and Agnew told him to put it down or he would end up
killing someone. Wood then took the gun
off him and told him he would not be shooting anyone. He was told by Wood that he would be using
the sledgehammer to put the door in. A
short time later Alex Wood had the shotgun in his hand and was singing and
dancing, shouting that he was going to shoot a hair bear.
[144]
Bowe and Wood decided between them Bowe
was to have the shotgun and Wood the handgun.
Wood asked
[145]
[146] The witness recalled the television being on
at this stage about 4.30/4.45pm. Alex
Wood decided at this time what our roles would be namely that the witness and
the brother was to hold the taxi driver behind the flat, Agnew was to obtain the
spirit and burn the car at a nearby school and Laffin was to drive from
Ballycraigy to Ballyvesey Park. This
occurred about 5.00 pm at a time when the “Weakest Link” was on television.
[147] Between 5.00/5.30pm Bowe said he wanted to
hurry up, get down and shoot this “fucker” as he wanted a kebab. Ian Stewart claimed that he was about a
couple of feet away from him at this stage.
[148] Shortly after 5.45 pm Wood told everyone to
get ready. Moore, Loughlin, Bowe and
Wood put on the gloves and lifted four balaclavas. They were dressed mostly in dark jackets and
dark clothing.
[149] His brother had gloves and a balaclava,
Agnew and Laffin had scarves and gloves and he had a scarf and socks with holes
in the fingers to take care of fingerprints.
He had a
[150] About 5.45pm Wood told them to leave for
[151] The taxi arrived around 6.00 pm. The witness, Agnew and his brother went out
to the taxi driver. Agnew and his
brother grabbed the taxi driver and manhandled him out of the taxi and into the
communal area of the flats without using the imitation weapon at that
stage. Laffin left to take the taxi to
[152] Shortly after this Agnew came across the
field and told them to come on. They decided
to go to Hinds house in
[153] When leaving they heard the police sirens
and they went into
[154]
McCrum then took the keys to their
flats and came back with fresh clothes.
He then took the old clothes to New Mossley Presbyterian Church to burn
them with spirit and that he had seen him going out to do that. McCrum was away about 5-10 minutes. The witness and his brother then had
baths. He recalled at 7.15/7.30pm Hinds
came to the back door and said it was on the news that English was dead and
then left. Neither his brother nor
McCrum were present at this time.
[155] The Stewart brothers then decided to go to
the Roughfort Inn and ordered a taxi for this purpose around 7.45/8.00 pm where
they stayed until about midnight. He
recalled about 9.00 pm a UVF member coming in and quizzing him about the
spirits and why the car had not been burnt.
The witness claimed he told him it was nothing to do with him and that
he should ask Agnew.
[156] Ian Stewart then claimed he went to Queen’s
Park overnight but since he was worried because it was a UDA estate and there
was a fear of reprisal he went to McCrum’s house the next morning about 10.00
am. Alex Wood came to McCrum’s house and
left with his brother but he did not recall where.
[157] The following Wednesday he went to the
Community House in
The Mr X incident in May 1996
[158] The witness recalled this attack on an
alleged paedophile. His brother and
himself were in
[159] He was told that they were going to his house
to take him out, beat him and take him by the back way to Larne by car.
[160] Haddock said that Ian Stewart, Thompson,
Wood and his brother did not require balaclavas as they were not known in this
area. There were baseball bats, hammers
and balaclavas and gloves present. He
gave the witness a baseball bat with a metal tip. Miller had a hammer. His brother had a baseball bat as did
Wood. Thompson was to drive the car to
[161] He described them all walking down the
street with Bond and Haddock walking on as did Thompson. He described himself, Miller and his brother
going into the house. He jumped over a
wall where he hurt his knee against a higher wall. Miller knocked the door and when a blonde
girl answered he pushed her out of the way.
Miller was the first into the living room where he commenced to beat a
man in a chair with a hammer on his head and body. The witness hit the girl with the blonde hair
by mistake and she fell to the ground.
He claims that all of them were beating this man over the head, body and
legs for about five minutes so that he was unconscious and bleeding.
[162] Miller and himself carried the man into the
hall where his hands and feet were tied with plastic ties and then into the
back garden in what seemed to be an unconscious state. The man was then thrown over some fences.
[163] A Ford Escort was waiting but he recalled it
running out of petrol. It was necessary
to change the car. He thought that
Thompson tried to drive the car but through lack of petrol it did not run. Within minutes another larger car arrived
with Bond and another man in it. Mr X
was put in the back of the car lying on his stomach with himself, his brother,
Thompson and Wood on top of him. Miller,
Haddock and
[164] The witness recalled a song on the radio in his
car called “Gangster Paradise” and Wood was slamming his feet on the man in
tune to the music.
[165] They then went to
[166] The witness claimed Haddock told him to keep
an eye on this man in the room where himself, Wood and his brother were. The man was unconscious. He described how himself and Wood broke some
fingers of this man with a poker that was in the fireplace. The witness broke one finger and Wood broke
two others and in addition the man was kicked and punched some more.
[167] He recalled Haddock coming in and saying
that he would “cut his dick and balls off” and then walked out. They were in the flat for about half an
hour. Haddock then came in and said that
they had to leave now and the man was being left with the local UVF. Once they left, they got into the same
vehicles and went the same way home. The
witness recalled hearing sirens and he heard later that the people in Larne had
been arrested for this. Thompson, Wood,
himself and his brother were dropped off by Bond. His brother and himself cleaned themselves up
and their clothes in a bath in
The Webster Incident
See earlier judgment.
Potential Supportive Evidence
[168] In addition the prosecution relied on other
evidence which it was contended was supportive of the case against one or more
of the accused. It was as follows.
[169] In the
case of Haddock, the prosecution contend
that there was a consistency in the Stewart brothers evidence that Haddock’s role was to organise and direct
the operation of the English murder including visiting the scene and giving directions to
the team when he left.
[170] They further
rely on the fact that he has been convicted of a large number of seriously
violent criminal offences thus demonstrating a propensity towards
violence. These convictions included:-
·
On 13 March 1987
wounding with intent together with 3 counts of causing grievous bodily harm
with intent, 4 of assault occasioning actual bodily harm and 3 of common
assault.
·
On 12 January
1994 grievous bodily harm.
·
On 20 November
2006 grievous bodily harm with intent and false imprisonment.
·
On 8 May 1998 arson
of the Golden Hind public house together with offences of unlawfully using force,
threats or menaces to oblige staff and customers to leave, possession of
firearms and criminal damage. An agreed
summary of the facts of the Golden Hind incident was put before me which
included evidence of an organised attack upon premises by 30-50 men. The attackers painted on premises the words
“UVF” and defaced parts of the property which had “LVF” written on it. An attacker during the assault was heard to
refer to the Tiger’s Bay UVF. Whilst
there was no evidence that any of the persons referred to by the witness was
Haddock and he was not charged or convicted of membership of UVF arising out of
this, nonetheless the Crown rely upon it as a evincing the propensity to become
involved in organised terrorist style violent attacks similar to the Mr X
incident.
[171] In
Haddock’s case, the prosecution also say that the sheer implausibility of the
Stewarts coming to a police station to
invent an account about Haddock being the commander of the UVF and organising
and inventing a story of others being involved in itself adds weight to the
case.
[172] In
relation to Miller, the prosecution rely upon consistency of the Stewart
Brothers in placing Miller at various stages throughout the plan up to the
murder of
[173] In the
case of Wood, the prosecution rely on the fact that he informed police during
the course of interviews in 2009 that on the day in question he had returned to
Mount Vernon about 1.45pm and remained there until late at night. There was independent evidence of a sighting
of Wood leaving
[174] Crown
counsel relied upon the consistency of
both Stewarts in identifying Loughlin, Wood, Bowe and Moore as having
volunteered to take part in the murder and Laffin and Agnew having been
involved in the hijacking ie that they had been unwavering in the fundamentals
of these offences and flawed only on the peripheral details.
[175] In the
course of interviews in 2009 with the police Loughlin failed to record that he
had been in Mount Vernon that day or that, as recorded by the police at the
vehicle checkpoint at Mount Vernon at 1.50pm, he had been in a vehicle with
Wood and two of the other accused allegedly going for a pint of beer. However it is right to say that he had
indicated that he could not really recall 31 October 2000 during this interview
in 2009.
[176] In interviews
of 2009 Laffin denied knowing Wood and Agnew despite evidence of their
association on the day of the murder in a sighting by police. The prosecution submit that if the court felt
he was telling a deliberate lie on this issue it would be capable of providing
supporting evidence to the main witnesses in naming him as a participant.
[177] In
relation to count 9, the charge against Hinds of assisting offenders and count
10 against McCrum perverting the course of justice were particularly strong in
the following circumstances.
·
There was no
benefit to the Stewarts to implicate either of them.
·
They were both
considered to be friends and in particular McCrum was the brother of a girlfriend
of Robert Stewart’s and Hinds was a cousin of that girlfriend.
·
It was
unnecessary to insert two names since one would have been sufficient to take
the weapon and burn the clothes. There
were other UVF members living in New Mossley that could have been implicated.
·
They could have
been left out of the account with little fear of the investigation revealing
the dishonesty of the Stewarts.
·
In the case of
McCrum, the assertion by the defence that he was never told and did not know
why he was being asked to fetch the new clothes or burn the old ones is to no
avail to avoid the charge . The fact of
the matter is that if the Stewarts are to be believed he was aware that two UVF
members had arrived at his house unexpectedly in the evening, requested him to
go to their respective homes, gather fresh clothes and burn the old ones. This is sufficient to draw the only possible
conclusion that they had committed a crime and were asking him to destroy
evidence thus perverting the course of justice.
[178] Counsel
on behalf of McCrum now submits that the events described by the Stewarts, even if true , included a suggestion
by them that the defendant had no choice
but to assist by destroying evidence. In so far as it is contended this raises
an issue of duress, the prosecution urged that there is no evidential basis
upon which the court could consider duress to have been raised. McCrum has maintained throughout the
interviews and trial that the events described did not take place. Moreover he has chosen not to give any
evidence that he was acting under duress.
[179] Turning
to the charges of UVF membership , the
prosecution allege there is at least supporting evidence against Haddock, Moore,
Bond and Bowe apart from the adverse inference from none of them having given
evidence .
[180] In the
case of Haddock and Bowe –
·
Haddock and Bowe
are named and allegedly signed the UVF plaque seized from Bond’s house.
·
The organised
terrorist style attack on the “Golden Hind” had an LVF mural defaced with the
words “UVF” and “Tiger’s Bay UVF” inscribed.
·
Haddock accepted
that he had a UVF tattoo although he said it was something he did as a “silly
teenager”.
[181]
[182] In the
case of Bond –
·
Bond had a UVF
tattoo on his right arm.
·
On 28 April 2009
Bond’s house was searched and a number of UVF related items were
recovered. He said in interviews in 2009
the items had been deposited at his house by a flute band when they moved from
the band hall and that he was treasurer of the band. The items included UVF mirrors commemorating
volunteers Bertie Rice, Mark Caldwell and Mark Quale. In addition poppy wreaths for UVF 3rd
Battalion, UVF 1st Battalion East Antrim and UVF 3rd
Battalion Command Staff Scotland were found.
There was also a UVF banner in a case and a UVF mirror of 3rd
·
A search of his
home by police revealed a plaque which contained the name “Bonzo” thereon. He accepts in the course of an interview on
12 May 2009 that his nickname is Bonzo.
Independent
evidence
[183] The
prosecution relied upon a number of sightings of the accused in each others
company as evidence of association and as challenging some of the accounts
given as to movements on the day of
·
On 28 October
2000 at 1.40 am a stop check was carried out on a yellow Hyundai vehicle at the
·
On 11 May 2000
three persons attended at the local police station to make a complaint namely
·
At 13.20 on 31
October 2000 the police at a VCP at
·
At 14.10
Constable Robinson gave evidence that the same car was seen at the same location
with James Dodds driving and the accused Miller together with two other
passengers on board. There was no note
of the direction in which the vehicle was heading.
·
The vehicle
returned at 1415 with Miller on board according to Constable McCutcheon.
·
At 13.50 at
Lowood Gardens a vehicle with Loughlin, Agnew, Laffin and Wood was observed leaving Mount Vernon when police were informed they
were leaving for “a pint “. It should be noted that whilst in interview of 2000
with police Wood claimed to have left
Mount Vernon Community House around 1.00pm to change his clothes and returned
about 1.45 pm there is no evidence from VCP of him having returned.
·
Haddock’s car is
seen at 13.23 in
·
On 2 November
2000 on the
·
On 7 November
2000 a BMW IAZ8001 was observed on the
·
On 12 November
2000 Bond, Miller, Haddock and
·
On 11 June 2001
in the Ballyvesey area in New Mossley police sighted Haddock, Miller and Agnew
together and overheard Haddock and Miller calling the other man Samuel.
·
On 17 October
2001 in the New Mossley area near the shops referred to in his case at 11.15
am, the said BMW IAZ8001 and a green Citroen registration number AKZ 2875 were
parked beside the shops. Haddock was the
driver of the BMW and his passenger was Wood.
[184] There
was evidence from Stephen Hobbs who was the lead senior officer from the HET
that up until August 2008 when the two Stewarts presented themselves to Antrim
PS neither of them had formed part of the police inquiry into the murder of
Thomas English. There is no evidence they had sought legal advice prior to that
date or to suggest they realised they would be asked about crimes other than
the English murder when surrendering to police. Thereafter they were
interviewed on more than 150 occasions.
[185] There
was unchallenged evidence that a sledgehammer left outside the door of the
English home at the time of the murder had been purchased from Andy’s Store at
approximately 2.53pm on the afternoon of the murder of
Adverse
Inference
[186] None of the accused gave evidence. The prosecution contended that:
· The evidence against each accused was probative, calls for an answer and the accused can give an innocent explanation if there is one.
· The court should draw the inference that this failure amounts to further evidential factors in support of the prosecution's case.
· Failure to give evidence should provide support for evidence of guilt.
The behaviour of the police towards
Robert and Ian Stewart
[187] I
conclude my summary of the prosecution case by dismissing the defence argument that was somewhat
tentatively raised in the course of cross examination and in closing
submissions by some counsel. It was suggested that the police had at least
assisted Robert Stewart with strategies to cope with questioning that would
occur by defence counsel in the trial. It was contended that the police simply
did not want to hear him repeating that he had difficulties with his memory and
encouraged him to stay with the version he had given.
[188] I am not
satisfied that the police acted improperly at all during these interviews. It is my view that they were simply
reassuring the witness that if he told the truth that is all that would be
required of him. An illustration of this
is when the interviewing officer said:
“They (defence
counsel) can say what they like, they can attack you but if that is what
you remember that’s what you remember.
You are not here to make things up.
You are not here to think well 2 + 2 makes 4 – tell them 2 is 2 and let anybody
else work out what that equals because you don’t know. If you can’t remember you can’t remember that
is all it is . . . Don’t bash yourself up.
If you can continue to give us the truth as you remember it that’s good
enough for us so don’t bash yourself up”.
[189] I find
nothing objectionable in this approach.
Stewart himself interpreted the police approach as simply one of common
sense because he was having as he described it “a bit of a wobble”. He said he had been in one room for one
month. He was getting “cabin
fever”. He recognised that the
interviewer at that stage was a consultant from
[190] I fail to
find any evidence that this police officer was, as alleged by
Conclusions
Pollock on count 7
[191] Before turning to the incidents based
largely on the evidence of the Stewart brothers I shall deal with counts 7 and
8 against Neil Pollock which do not depend on such evidence.
[192] My role is to determine if, on the evidence
as a whole, the prosecution has satisfied me of the guilt of the accused beyond
reasonable doubt.
[193] I note
at the outset that Pollock is of good character and accordingly the references
I have made at paragraphs [53] et seq of this judgment to good character apply
to him in this instance under both counts 7 and 8.
[194] On count
7 Pollock was charged with possession of items intended for terrorist purposes
contrary to section 32(1) of the Northern Ireland (Emergency Provisions )Act
1996.
“Particulars
of Offence
Neil Pollock, on 31 October 2000 in the County Court
Division of Belfast, had a certain article, namely a sledgehammer, in his
possession in circumstances giving rise to a reasonable suspicion that the said
item was in his possession for a purpose connected with the commission,
preparation or instigation of acts of terrorism connected with the affairs of
The facts
upon which the prosecution rely in relation to count 7
[195] I am
satisfied that the prosecution have proved the following facts relevant to this
count:
·
The sledgehammer,
the subject of this charge, was purchased from Andy’s Store Glengormley at
approximately 2.53 pm on the afternoon of the English murder. That sledgehammer was found outside the rear
door of the English home after the murder had taken place and was seized by
police. I am satisfied it was brought to
the scene of the murder by the miscreants to use in the course of the murder
attempt. It was the same sledgehammer
that
·
·
CCTV footage from
Andy’s Store showed a male person alighting from a three door Rover car, entering
the store and purchasing the sledgehammer.
This person was undoubtedly Pollock.
He had purchased the car before the murder from Charles Hurst garage on
10 October 2000 and he was sighted in the car by police on 4 November 2000.
The
prosecution case
[196] Pollock
has accepted therefore that he was the person who purchased the sledgehammer
that was used in the murder on the same day.
The prosecution do not need to prove that he specifically knew the
English murder was the act of terrorism for which the sledgehammer was to be
used. Since he has accepted possession of the sledgehammer the prosecution must
satisfy me beyond reasonable doubt that the circumstances of purchasing and
possessing the sledgehammer are such as to give rise to a reasonable suspicion
that the item was to be used in connection with terrorism. For this proposition
the prosecution rely on the following:
·
Pollock admits
being at a family funeral earlier in the day in Banbridge. He made a misleading statement to the police
on 16 April 2009 about the time he left.
He has admitted that when he did leave the event with Bond his
brother-in-law, he heard of the murder of Bertie Rice as part of the on-going
feud between the UDA and UVF on the radio.
·
He admitted going
to another location before he went to Andy’s Store but refused to say exactly
where. He admits driving to the hardware retailer to purchase the sledgehammer
having been requested to do so by a person he refused to identify to the police.
·
He refused to
name the man in the car who had been with him at Andy’s Store in his interviews.
·
He refused to
accept that Bond his brother-in-law was in the car with him although equally he
did not deny this.
·
He said he was
under pressure because of the person who made the request to buy the
sledgehammer.
·
He said he was
under pressure for many reasons at the time he was asked to purchase the
sledgehammer.
·
He admitted that
he assumed that the purchase of the sledgehammer had something to do with the
feud that was going on. In the course of
an interview with police and members of the HET on 29 April 2009 commencing at 17.21,
in the context of the purchase of the hammer, the following exchanged occurred:
“Police .. You
tell what you knew about it at the time?
Pollock – That there was people getting killed and
people trying to hide. I assume that it
was for the – as there was sort of brick houses up over there. I was assuming it was to maybe knock like a
bit of a wall to get like a safe house sort of thing for somewhere, somewhere
to hide or whatever … You know as I
assumed it was like to, just like to know your way in through like a bricked up
house or a bricked up house whatever.
Just to get somewhere for obviously guys that were involved in like feud
situations.”
·
When asked if he
knew that the people who were instructing to do this were in the UVF he replied
“allegedly so”.
[197] On this
basis of this evidence I am satisfied beyond reasonable doubt that he would
have been aware or at least had a reasonable suspicion that
the request to purchase the sledgehammer was not for any legal purpose but for
a purpose connected with terrorism and had been requested by a person with
paramilitary terrorist connections who was not prepared to purchase it himself in
the context of the on-going Loyalist feud.
His failure to inform the HET of his involvement in purchasing the sledgehammer
coupled with his untruthful account of his movements that day with his
brother-in-law when leaving the funeral were all matters that further served to
satisfy me to the required level that the purchase of the sledgehammer was such
as to give rise to a reasonable suspicion that the item was to be used in
connection with terrorism.
The defence
case
[198] Ms
McDermott, who appeared on behalf of Pollock with
Legal principles
governing the defence of duress
[199] The
principles governing the test for duress can be crystallised as follows:
·
First, it is
permissible for a defendant to rely upon prosecution evidence as a means of
raising the defence however difficult that may be in practice and in certain
circumstances it may not be necessary for him to be required to adduce his own
evidence before the issue can be considered by the court. (See R v Hyde and Hyde [2004] NICC
29).
·
I agree with Ms
McDermott’s submission that Archbold 2012 at paragraph 17-121 contains therein
an appropriate definition of duress. It
is couched in the following terms:
“From the sources, the following test can be advanced:
was a threat of physical harm to the person made, which was of such gravity
that it might well have caused a sober person of reasonable firmness sharing
the defendant’s characteristics and placed in the same situation to act in the
same way as the defendant acted?”
·
Such fear must be
produced by threats of death or grievous bodily harm if a certain act is not
done.
·
It is essential
that the threat should have been effective at the time when the crime was
committed.
·
Threats to third
parties can be capable of constituting duress e.g. to family.
·
The belief must
be reasonable as well as genuine.
·
Once the judge
has ruled that there is evidence of duress fit to be left to the jury, it is
for the Crown to prove beyond reasonable doubt that the defendant was not
acting under duress. The accused must place before the court such material as
makes duress a live issue fit and proper to be left to the jury .It is then for
the Crown to destroy that defence in such a manner as to leave in the jury’s
mind no reasonable doubt that the accused cannot be absolved on the grounds of
alleged compulsion.
·
There has in
recent years developed the expression “duress of circumstances”. This relates to a situation where a person is
driven to commit a crime by force of circumstances. It may be that duress, strictly so-called,
should itself be regarded as a form of the defence of necessity. This will arise as a defence to a crime if
the commission of the crime was necessary, or reasonably believed to have been
necessary for the purpose of avoiding or preventing death or serious injury to
himself or another, that the necessity was the sine qua non of the commission
of the crime and the commission of the
crime, viewed objectively, was reasonable and proportionate having regard to
the evil to be avoided or prevented.
Evidence
relied by the accused
[200] Ms
McDermott on behalf of Pollock relied on the contents of four interviews
between the accused and police and members of the HET on 28 April 2009 and 29
April 2009 between 15.17-15.54, 17.21-18.03 and 19.40-20.20.
[201] In the
course of these interviews Pollock was questioned both about the purchase of
the sledgehammer and his witness statement to the police of 16 April 2009.
[202] I have read
all the relevant interviews and without rehearsing each and every extract,
relevant material includes the following:
On 29 April 2009 one of the police officers said to him:
“There is absolutely no doubt in my mind and no doubt in
my colleague’s mind that the man at Andy’s Stores buying that sledgehammer is
you. I understand the predicament you’re
in. I understand the involvement of your
family and it’s a very big decision and because of that that’s why today it has
lasted nearly four hours.”
[203] I pause
to observe that this amounts to no more than a suggestion by the police that it
may have been difficult for him in the circumstances.
[204] Later in
that interview the following exchange occurred between himself and a member of
the HET:
“R. Foreman – Before we do. Neill, from what you’ve said your solicitor
has mentioned duress, yes I am sure that has happened. What we’re saying we’re stopping this
interview at this present time because you’re concerned about me naming names
and you’re concerned about the questioning that you don’t want to name names?
Pollock – Yes.
Foreman – Yes?
Pollock – It would be fair to say that I would have
maybe concerns with me at this present moment in time.”
[205] In a
further interview on the same date he refused to say who had asked him to
purchase this sledgehammer and had been simply told to “go and get a
sledgehammer”.
[206] Later in
that interview the following exchange occurred:
“R. Scott – I am asking you a very pertinent question
around who was in that vehicle with you?
Pollock – Well at that time then I would, I would
prefer not to say.
R. Scott – Okay so you don’t want to tell us who was
in the car with you.
Pollock – Yeah I’d prefer not to say.”
Later when asked about the presence of Bond in the
vehicle he said “You could assume but I’m just not totally prepared to say”.
[207] At a
further stage in the interview the following exchange occurred:
“R. Scott – When did you go and buy the sledgehammer.
Pollock – Obviously at that, at the times that you’re
saying. But I am not prepared … to say
who was with me or how it came about.”
[208] Further
in the interview the police asked him why he would not name the person who was
in the passenger seat of the car when he had gone to Andy’s Stores and he
replied “Just personal reasons”.
[209] When
during that interview the police asked him if he was under pressure at any
particular time he said “I was under pressure for many reasons”. When pressed as to what were the reasons he
said “The person that asked for that I would never ever dream of second
guessing the guy”. The following
exchange then occurred:
“R. Scott – So why would you be under pressure.
Pollock – Simply because I knew who the guy was. At the time, cos you are all aware you’re all
aware there was a feud thing going on between UVF and UDA … There was people getting killed and people
trying to hide. I had assumed that it
was for the – as there was sort of brick houses up over there. …. I
was assuming it was … to knock a bit of a wall to get like a safe house sort of
thing for somewhere, someone to hide or whatever.”
[210] At a
further stage in the interview when he again was being asked about being
instructed by a UVF member to go and buy the sledgehammer the police asked him
what his thoughts were then and why he had not said no to the request. He replied “Cos again I just basically just
out of kind of fear would you say?” He
added at that stage that he had never been asked by the UVF to do any other
forms of criminality before.
[211] The
police asked him why he thought he had been chosen to purchase the sledgehammer
to which Pollock responded:
“I am under the assumption because there would have
been no problem. You know no I’m not
going to get it, you go and get it sort of thing.”
When the police asked him why that would be his
response was “Because of the type of person that he is.” When his solicitor then asked him if he was
frightened of that man he replied that he was.
[212] In the
interview of 29 April 2009 between 17.21 and 18.03 the following exchange
occurred between Pollock and his solicitor in the context of the sledgehammer:
“Solicitor – I think what the police are saying is,
see this person that asked you to get the sledgehammer, rights, were you
frightened of him?
Pollock – Yes.
Solicitor – Right and you thought if you didn’t get
the sledgehammer that – what sort of repercussions would that have had for you.
Pollock – I didn’t.
Solicitor – No, if your man had said, you buy the
sledgehammer and you’d said fuck off what would have happened.
Pollock – I wouldn’t have took a chance to find out.”
[213] I also
recognise that the good character of Pollock makes it more unlikely that he would
commit the offence charged. I take it into account also in assessing the
credibility of the interviews he has had with the police/HET and any statement
he has made therein. This evidence of good
character is therefore part of the totality of the evidence upon which I must
decide whether there is any doubt about guilt.
Verdict on
count 7
[214] Whilst
Pollock is entitled to a good character direction, nonetheless I am not
satisfied that he has made out the case of duress on Count 7. I am of this view for the following reasons.
[215] I am not
persuaded that in relation to the sledgehammer incident he has ever expressly
referred to a fear of serious harm or death as a reason for having purchased
the sledgehammer. The reasons he has given have not raised a threat of such
gravity that it might have caused a sober person of reasonable firmness sharing
Pollock’s characteristics and placed in the same position to act in the same
way as he acted.
[216] In the
context of the sledgehammer, the height of the case he ever made is that he
felt frightened and under pressure and refused to take a chance to find out what
would have happened if he had refused to purchase same. There is no evidence that
he had initially made an excuse to avoid involvement, evinced any reluctance,
requested them to find someone else or refused to the extent that a threat was made to him.
He never asked the consequences if he had refused. There is no evidence that
anyone ever expressly made a threat of death or grievous bodily harm to him or
any member of his family despite the clear opportunities to make such a case
presented by the interviews. Since he said he had never been asked before to
perform tasks for the UVF, he could have no idea how they might have reacted to
a measure of reluctance on his part or even downright refusal.
[217] What man
of reasonable firmness would have yielded to this request without at first
testing the water by asking not to be involved or refusing initially to become involved? I am not satisfied that there is
material before the court to make duress a live issue. I do not believe that sufficient material has
been raised for this matter to be left to me to determine that it is for the
Crown to destroy that defence.
[218] The mere
presence in this area of violent UVF thugs and the treatment they had meted out
to other innocent people, is in my view not sufficient by itself to make duress
a live issue in the absence of positive material before the court that he was
under such a violent threat in this
instance.
[219] I do not
believe that a person of reasonable firmness would have yielded to the mere
chance that a threat might have existed without at least exploring the
possibilities with the inquisitor who was making demands upon him.
[220] Even if
I am wrong about the height of the threat that he has relied on in relation to the sledgehammer and
if he can borrow in this count the
threats he has relied on in relation to count 8 (see below), the fact that he prevaricated and
lied during the first interviews at a
stage when it would have been expected that he would have immediately raised
the case of duress if he intended to rely upon it are yet further reasons that I do not accept that
he has properly raised such a defence. To make that case of duress it would not
necessarily have involved him naming persons but at the very least he would
have been in a position to describe circumstances sufficient to make duress a
live issue.
[221] Had I decided that he had raised the issue of duress
fit and proper to be left to my determination, I am satisfied that the
prosecution can point to the matters I have raised in paragraphs 215—217 and
220 above to destroy that defence and
prove beyond reasonable doubt that he was not so acting.
[222] Further,
he has chosen not to give evidence despite being warned about the risks of
failing to do so and thus the prosecution is prevented from cross-examining him
in order to test any assertion of duress. I believe that the evidence is such
that it called for him to give evidence in support of a case of duress and that
his failure to do so constitutes a factor negativing any such suggestion. In short I do not believe that it was
sufficient for this defendant on this count to simply assert his fears without
providing material upon which the court could have found the threat to be
sufficiently cogent e.g. explaining why he did not at least test the water by
expressing reluctance to carry out the offence of refusing to act as requested
etc. I consider that the court is
entitled in such circumstances to conclude that he fears his account of duress
will not stand the scrutiny of cross-examination. I therefore draw an adverse inference against
him in light of his failure to give evidence. Adding this to the matters raised
above I am satisfied of his guilt beyond reasonable doubt.
[223] In all
the circumstances therefore I find Pollock guilty on Count 7.
Pollock on Count
8
[224] On count 8 Pollock is charged with doing an
act with intent to pervert the course of justice contrary to common law. The particulars of the offence were recorded
on the indictment as follows:
“Particulars of Offence
Neil Pollock, on a date unknown between the 15th
day of April 2009 and the 31st April 2009, in the County Court
Division of Belfast, with intent to pervert the course of public justice, did
an act which had a tendency to pervert the course of public justice, namely,
that he made a witness statement to investigators from the Historical Enquiries
Team dated 16 April 2009 in connection
with an investigation into the murder of Thomas English, to the effect that you
were with John Bond at a funeral service and reception in Banbridge on 31st
October 2000 and did not leave the Downshire Hotel with him until it was
getting dark, whereas in fact you left the funeral service and reception with
John Bond to return to Belfast a number of hours earlier”.
The
prosecution case
[225] There is
clear evidence in his statement of 16 April 2009 that Pollock was attempting to
provide a false alibi for Bond who was his brother-in-law. In that statement Pollock has said that he
left the Downshire Hotel at a time when it was getting dark and that he drove
Bond and another to Bond’s house in Mount Vernon before going into his own home
in New Mossley. The statement makes no
reference to going to Andy’s Store to purchase a sledgehammer.
[226] Pollock
has accepted in the course of interviews that his account to the HET was
dishonest. Whilst he was present at the
funeral and possibly for a period at the church hall reception following the
burial, it was untruthful to suggest that either he or Bond was present at the
Downshire Hotel. It was also untruthful
to say that they did not leave the hotel until it was getting dark whereas it
can be clearly seen in the CCTV footage outside Andy’s Store in Glengormley on
the day of the funeral that it is daylight.
The store is in Glengormley whilst the Downshire Hotel is in Banbridge
and it is therefore inconceivable that it could have been “getting dark”
leaving Banbridge and arriving at Glengormley in daylight. There is clear evidence that Pollock
purchased the hammer at approximately 2.53 pm on the afternoon again illustrating
that he would not have been at the hotel at a time when it was getting dark.
[227] The
prosecution need only establish that the defendant has done an act that has a
tendency to pervert the course of justice provided the act is intended to have
that effect. Providing a false alibi to the HET for Bond at a time when he
knows the HET are making inquiries about a murder and in the course of a
statement which by virtue of its heading makes clear that it may be tendered in
evidence at a preliminary enquiry or at trial and that he may be liable to
prosecution if he has wilfully stated anything therein which he knows to be
false amounts to an act that not only has a tendency to pervert the course of
justice but is intended to have that effect. In those circumstances the
prosecution contend that he was intending to provide Bond with a false alibi of
being in the Downshire Hotel in the later stages in the afternoon.
The Defence case
[228] Again
Ms McDermott contends that the defendant can rely upon the defence of
duress. She submits that it is possible
and proper for the defendant to rely upon the circumstances of the case and his
interviews to raise the defence of duress and the prosecution have failed to
prove beyond reasonable doubt that he was not acting under duress. The same legal principles apply as in count
7. In addition the defence rely upon the fact that the statement was made by
Pollock to a civilian investigator with the HET and not to a police officer
together with the circumstances of the
statement being taken in order to challenge
the basis of the charge (see paragraphs 241 – 242 infra ).
Evidence
relied on by the accused
[229] In the
interview of 29 April 2009 between 19.40 and 20.20, when asked why he would not
say for sure that he had been at the Downshire Hotel, he told the police this
was because he was under “a lot of pressure”.
When the police asked him again to outline the pressure in general terms
he replied “I have the entire fear of my family … and my immediate family”.
[230] In the
interview of 29 April 2009 between 19.40-20.20 the following exchange occurred
between the HET and Pollock:
“Scott – What I am particularly interested then, all
right I’ll redirect you. The statement
you’ve given our officers, okay, was a result of absolute pressure borne upon
you by a gang, okay, described as the UVF in order for you to put particular
people in particular places at relevant times is that correct?
Pollock – Yeah.”
[231] Counsel
for Pollock relied upon an exchange between Pollock and
“Pollock – There we are, and again I’ll go back to the
original answer is if yous know who these guys are … and you were in my shoes,
what would you have done?
Scott – I’d do it.
I’d do it. I agree.”
[232] In terms
of this exchange Ms McDermott submitted that
[233] Finally
in the exchange in that interview between Scott and Pollock the note of the
interview records as follows:
“Scott – You have given a statement to us on 16 April.
Pollock – Yeah.
Scott – Which has a number of inaccuracies and I’d go
as far as to say lies. Okay, you have
tried to pervert the course of justice and you have tried to deflect us away
from the truth and you have admitted now that this particular part, the crucial
part, the time of the murder is untrue.
Now I just really want a final answer from you as to why you did that?
Pollock – Cos of the people that are involved in the
murder.
Scott – And fear for your life?
Pollock – Yeah.
Scott – Please tell me.
Pollock – In fear of my life. My family’s life.”
Verdict on
count 8
[234] I have
again taken into account that the defendant is a man of good character and
entitled to the full good character direction to which I have earlier adverted
in this judgment. I also take into
account that the investigators had no information to connect the defendant to
the activities of the UVF.
[235] I am
satisfied beyond reasonable doubt Pollock is guilty of the offence set out in
Count 8. My reasons for so concluding
are as follows.
[236] I am persuaded
that the facts set out in paragraph [225] to [227] above have been proved by
the prosecution and clearly establish the primary facts of the crime beyond
reasonable doubt subject to the issue of duress to which I now turn.
[237] I am not
satisfied that the defendant has provided sufficient material to make duress a
live issue. As in the case of Count 7,
he prevaricated and lied during the first interviews at a stage when it would
have been expected that he would have immediately raised the case of duress if
he intended to rely upon it. To make
that case of duress it would not necessarily have involved him naming persons
but at the very least he would have been in a position to describe circumstances
sufficient to make duress a live issue.
[238] Once
again, as in the instance of Count 7, no evidence emerged from the interviews
as to whether the defendant, apart from declaring that he would have put
himself and family at risk, ever tested that in this particular instance by
expressing reluctance to or refusing to
assist his brother-in-law. There is no
evidence that his brother-in-law or anyone else ever expressly made a threat of
death or grievous bodily harm to him or any member of his family despite the
clear opportunities to make such a case presented by the interviews.
[239] The
somewhat ill-advised empathy on the part of
[240] I adopt
the same approach as I did on count 7 and state that if I have wrongly
concluded that he has not adduced sufficient material to raise the defence of
duress, I am completely satisfied that the prosecution have destroyed that
defence by posing the matters I have raised
in paragraphs [237]-[238] above. In
addition I am satisfied that I can draw an adverse inference from his failure
to give evidence in the same terms as under Count 7. Despite being warned about the risks of
failing to give such evidence he has chosen not to do so. I believe that the evidence is such that it
called for him to give evidence in support of a case of duress and that his
failure to do so constitutes a factor negativing any such suggestion. In short I do not believe that it was
sufficient for this defendant on this count to simply assert his fears without
providing material upon which the court could have found the threat to be
sufficiently cogent e.g. explaining why he did not at least test the water by
expressing reluctance to carry out the offence of refusing to act as requested
etc.
[241] The
defence rely upon the fact that the statement was made by Pollock to a civilian
investigator with the HET and not to a police officer. Nonetheless I am satisfied beyond reasonable
doubt that he must have been aware that the HET were involved in a criminal
investigation of crime which would be pursued by the police and would be part
of a criminal investigation. The
contents of the heading of the statement must have made it absolutely clear to
him that this was the case given that the statement would be used in the course
of a trial. I am therefore completely
satisfied that there was a close enough connection between the HET
investigation and subsequent proceedings which would be initiated by the
police. I am also convinced that there
was sufficient and apparent connection between the HET and the police to the
extent that his lies clearly manifested an intention to effect adversely a
criminal investigation.
[242] Counsel
submitted that the visits by investigators to Pollock on 16 April 2009 were not
confined simply to obtaining a statement but rather were part of the
investigation of Pollock. Hence had it
been a police officer rather than the HET, counsel submitted that the accused
would have been cautioned. I am
satisfied from the evidence that the intention of the HET was to obtain a
statement from him in the normal way that such an enquiry would take statements
from possible witnesses about their movements on the day of the funeral. That they may have been also investigating a
connection between the red Rover photographed outside Andy’s Stores on 31
October 2000 and the defendant having been sighted driving such a vehicle on 4
November 2000, does not in my opinion constitute sufficient material for them
to have been obliged to caution him before taking such a statement. Certainly these matters were never raised by
way of cross-examination with members of the HET. No opportunity was afforded to them to deal
with this aspect of the case and in truth it has only emerged during the
submissions of counsel. I am satisfied
that there is no basis to it and that the HET investigators acted appropriately
in obtaining a statement from Pollock in the terms already set out.
[243] I
consider it irrelevant that the HET continued to take steps to explore the
ownership of the red Rover by attending Charles Hurst car dealership etc. This has nothing to do with the nature of the
charge which is that he did an act with intent to pervert the course of
justice.
[244] I am
therefore satisfied that Pollock is guilty of the offence as charged under
Count 8.
The remaining counts
[245] At the halfway stage of this trial, guided
by the principles of Galbraith et al, I concluded that there was evidence on
each of the remaining counts now before me where its strength or weakness
depended on my view of the reliability of the Stewart brothers together with
any supporting evidence and where on one view of the facts it was conceivable that
I could convict the accused.
[246] Now my role is to determine if, on the
evidence as a whole, the prosecution has satisfied me of the guilt of each
accused beyond reasonable doubt.
Memory
[247] I commence
my odyssey through the mass of evidence in this case by making some general
observations on the concepts of memory and the sweep of time based on my
knowledge of the world and my experience of people because much ink has been
spilt and time invested during the course of this trial on the powers of
recollection of Robert and Ian Stewart.
[248] Memory
is an active process rather than a simple tape recording of what has happened. It
is imperfect, mutable and often laced with imprecision as time passes. Time
does not act as a fixative but can be as a solvent. Memories can be influenced
by all sorts of substantive factors. It
does not work like a tape recorder. It
can be changed and adjusted over periods of time after the event without the
person even realising. Our memories are
linked with other memories so one bit of information can be a cue which helps
you remember other matters initially overlooked. Memory through repression or
choice may be attracted to the external detail with peripheral matters sacrificed
in the process. In particular there can be radical differences between
recollections of those at the centre of the incidents we recall and those at
the periphery.
[249] Thus we
are all aware of instances where we felt that we were remembering a
conversation word for word but, as we may be reminded by others who were there,
we were remembering at least a slightly different version of it. We can be convinced that we have recounted
conversations or descriptions accurately but later discover our recollection
can be wrong. Different words may have
been used and topics may have been mentioned in a different order. Yet even though the details of our
recollection are wrong, the actual meaning of what has gone on is perfectly
correct i.e. whilst we may be mistaken in recollection of details, locations or
content we can remember what has actually happened nonetheless.
[250] Our
knowledge of what this all means can influence a recall of the details. Memories of many matters can initially be
faulty particularly when we are first asked to recall them. But those faults may be repaired with time
albeit sporadically and not at the one time. Two people may honestly recall the
same event in different ways and overtime change their individual
recollections. Thus I did not anticipate frictionless accord on every occasion
from the Stewarts.
[251] I do not
believe one needs to delve into cognitive psychology to know that when people
are asked to remember a story, they make a sense of the story in their own way. We are all prone to adjust a story to fit in
with our own reaction and emotions to the incident in question. The sequence of the recollection can change. In truth memory is likely to be influenced by
our own expectations and understanding of the world albeit to us it has always
felt completely factual.
[252] Accordingly
I had not the slightest difficulty accepting in general terms the premise so
often relied on by both Stewarts throughout their testimony that a pot pourri
of circumstances contributed to faulty or delayed recollections which were later
accurately retrieved from their memory
bank. I understood that recollections of
events that had occurred between 8 and 12-15 years ago can take time to mature
and reach a stage of accurate recitation. Those engaged on a process of
recollection of events long ago need time and space to recollect all the detail.
Memory of particular incidents may change and can take some time to
comprehensively yield all that the memory bank holds especially since they may
not have anticipated such detailed questioning when they originally went to the
police.
[253] Thus I
found nothing unusual in principle about
conflicts in recollection per se between
the two Stewarts or the unfolding
recollection and correction of names or
events during the interview process. Reasons
for error or delay in the process of recollection in this case can plausibly
include:
·
The sweep of time
itself.
·
Lack of
preparation before being asked about them.
·
Nervousness.
·
Pressure of
interviews by police.
·
The effect of years
of drug and alcohol abuse.
·
A sense of isolation.
·
The mood or
well-being of the person at any given time.
[254] Despite
the skill invested in this case by counsel, much of the cross-examination was
vented on unreasonable expectations of what the Stewarts could acceptably be required
to remember.
[255] Without
going through the whole case, some individual instances in the English and Mr X
incidents will serve to illustrate the kind of memory lapse that on an
individual basis I fully understood and which did not serve to undermine the
witnesses in my view.
The English
murder
·
Temporarily
overlooking a meeting at the steps before going to the flats.
·
Omitting names on
occasions from a large group of people.
·
Confusion about clothing
or colours of weapons.
·
Mistakes in
timings.
·
Mixing up
sequences on occasions or from one interview to another.
·
Overlooking who
was there at any given stage in circumstances where people were coming and
going from the flat.
·
Where particular
people were standing or sitting at any given time.
·
Confusion as to
who was giving instructions where more than one person was doing so.
The Mr X
incident
·
Which man drew
attention to the allegation that the victim was a child molester.
·
Which weapon each
man had or who was given gloves or balaclavas when a large number of men are
allegedly involved.
·
Who precisely was
in a car in which the witness was not present.
·
The number of
doors in the car in which the victim was taken.
·
Whether the
victim’s hands were tied at the front or the back.
·
Who was or was
not wearing a hood in the car taking the victim to Larne.
[256] A
greater challenge is presented however when the recollections of two historians
become manifestly infected with evidence of lying, invention and
collusion. False memories emerge with
increasing frequency so that there is evident confusion about the presence of
certain of the alleged participants and roles are regularly embellished and altered.
Evidence often consists of impression and half memories which may be self
serving. These concerns become
considerably heightened when the same two people make identical mistakes and
corrections and independent evidence
again and again contradicts the narrative.
[257] It
becomes even more troubling when the number of defective recollections, .
which individually may be unconcerning by themselves,
become collectively so great that the
listener begins to question the overall reliability of the narrative. This concern gathered momentum in light of
the vast number of offences with which the two primary witnesses had been
involved and which therefore threw up the possibility of confusion from one
incident to another at least in the case of Mr X and the UVF membership
allegations.
Invocation
of the Makanjuola Principle
[258] Having
discussed the matter with counsel at the end of the case, I have come to the
conclusion that the circumstances surrounding the evidence of both Robert and
Ian Stewart are such that it is necessary for me in each instance during the
course of my review of the evidence to warn myself not only of the need for
caution in approaching each of their accounts, but also to recognise the wisdom
of seeking supportive evidence before relying on anything that they said. The weaker that I found their evidence, the
greater was the need to find strong independent supportive evidence if I was to
be convinced beyond reasonable doubt of the guilt of any of the accused.
[259] Against
the background, I have approached this task by considering a number of
different strands that have gone to make up my overall assessment of the
strength of the prosecution case. These
are:
(1) The
fact that the Stewart brothers are accomplices of extremely bad character whose
memories have been subject to the ravages of alcohol and drug abuse over the
years.
(2) They
have lied to the police and to this court not only about their motivation in
coming forward but during their recitation of the events of these crimes.
(3) They
may be prone to confuse the presence of some of the accused and individual
events because of the regularity of their presence together. There is clear evidence that they have on
occasions wrongfully implicated people in crimes which they did not commit.
(4) They
have been confused as to the roles and words of many of the accused throughout
their evidence.
(5) They
have compromised their independence as witnesses by clearly colluding at times.
(6) Their
evidence has been contradicted by independent evidence on many occasions.
(7) Finally
the demeanour of these witnesses in the witness box must play a role in my
overall assessment of their credibility.
I must ensure that I do not invest such an assessment with any error of
law or logic or misapprehension of fact.
Accomplices
with very bad character
[260] The
Stewarts are clearly accomplices in all of the crimes about which they gave
evidence. On any view these two men were participes criminis to a primary
degree in all these matters. That in itself would not mean a Makanjuola
type warning was necessary. However in this instance these are
accomplices of extremely bad character (see below). I recognise as a matter of common sense
together with reliance on my own lengthy experience in criminal practice that
such accomplices of bad character may fabricate chunks of evidence. The motives
of seasoned accomplices and hardened criminals such as the Stewarts may not
always be accurately discerned by the naked eye.
[261] I must
recognise that the assessment of motive by means of logic is attractive in
theory but may fail to take account of the complexity and ingenuity of the
human nature particularly one fuelled by a history of strong criminal bent. Each of them may be truthful
in some or even large measure but false in their implication of certain individuals. They may tell the truth about the incidents
in question but substitute the names of innocent people or suspects whom the
police are especially anxious to see convicted for those who actually took part
or implicate those who genuinely were involved but may change the roles to cast
themselves in the most favourable light and the others in the worst.
[262] Moreover
having been involved in a myriad of crimes - often of similar genre - they may
become genuinely confused as to the participants in any individual crime. As I have earlier indicated, spurious
plausibility may appear by virtue of familiarity with details of the crime.
[263] The fact
that truthful testimony is the sine qua non of entry into the SOCPA scheme must
not overlook the obvious possibility that such a witness may embellish or
fabricate the testimony to curry favour with the prosecution or to vent some
private grudge against one or more of the accused.
[264] Such accomplices may take the step of confession at the impetus of any one or more of a variety of motives including genuine contrition, the desire for revenge on former associates, the hope of obtaining some personal advantage, leniency in punishment or a highly developed sense of self-interest particularly where, as in this case, they were fearful for their own lives at the time they came forward. At the risk of repetition I remind myself again of what Lord Lowry LCJ said in Gibney’s case
“A man who has been granted immunity … may fear (without foundation, it may be) that the immunity will be withdrawn or that the full terms of his bargain would not be implemented if he does not swear up to his proof. Someone who has been sentenced may believe (possibly quite mistakenly) that his actual stay in prison depends on the evidence he gives. It behoves judges to remember these points and juries must be warned about them.”
[265] Ample
time and opportunity during the time they had been in prison and protective
custody will have allowed them to discuss the matter and raises the possibility
of rehearsal of false evidence in preparation for courtroom performances. Thus
the burden is on the prosecution to prove (rather than the defendant to
disprove) the reliability of this accomplice evidence.
[266] In short
I have to be satisfied beyond all reasonable doubt that I have eliminated all
factors which might motivate the witnesses to lie.
[267] The
principles of Makanjuola, have a particular resonance in this case where
both Stewarts in the past at least were ruthless criminals, unflinching
terrorists and men of profoundly bad character
conducting their lives very often in a haze of alcoholic stupor and illegal
drug abuse. Their lives were chaotic and
devoid of normal moral scruples. They lived in a place where powerful
criminals, such as themselves, were subject to few or no rules, where the voice
of civilised reason was silenced and where it was difficult for the innocent to
complain. Their admissions in 2008 to a plethora of criminal offences
committed over a lengthy period of time presented an overpowering and piercing
image of unspeakable random violence and
mean spirited deceit from which decent men and women would instantly recoil and
which even for the court made wincing listening.
[268] Both had
been habitually dishonest and deceitful preying on vulnerable people working in
their area such as milkmen, debt collectors, local shopkeepers all of whom were
robbed, at times at knifepoint, to the extent where eventually they stole from
their own parents. Whilst their bad character was in no sense dispositive of
the determination of the issues before me, nonetheless I had to consider
whether such men would scruple at committing perjury to secure their ends. It
imposed on me the task of making a rigorously searching enquiry for
supportive evidence.
[269] My concern
was that despite their assertions of change and professed commitment to do the
right thing, these were the same men merely wearing new suits.
[270] A brief
tour d’horizon of some of the crimes committed by Robert Stewart prior to the
Thomas English murder revealed the following:
· In 1998 he violently attacked a teenager forcing him to hold light bulbs under his hands during the beating in order to intensify the pain occasioned.
· In 1994 he robbed a milkman in New Mossley (NM) beating him with a skirting board.
· In 1995/96 he robbed a debt collector in NM attacking him with a stool leg.
· The Webster incident of 1996.
· The Caskey incident of 1996.
· The Mr X incident 1996.
· Underage sex with a series of children.
· At times held the rank of second in command of the UVF in NM between 1994 and 2000.
[271] In the course of the scoping interview on 10 September 2008, (there were 5 scoping interviews in all on that date), Robert Stewart said that he had been put in charge of New Mossley some time after the murder but he had no choice and nothing really happened anyway after the feud. I find that disingenuous. After the English murder some of his crimes included the following:
· A brutal beating of Terri North in 2003.
· Another brutal beating of Hamilton Molyneau with the use of a drop bar between December 2003 and December 2004.
·
Grievous bodily
harm with intent of a man called Andrew Taylor on 15 February 2005.
· A kneecapping with a firearm in 2003 namely a punishment shooting when he and, allegedly, [MG] had been involved in a shooting of a man named Red. The gun had been allegedly taken thereafter to a UVF man’s house called [AG].
· He kept a shot gun in his mother’s house for short time.
· On 5 September 2003 he was involved in a wounding and kidnapping incident with a firearm concerning a man by the name of John Major.
· Left a pipe bomb 12 September 2003 in Larne on a window sill to scare a family in order to stop a Mr Gowdy giving evidence in a forthcoming trial,
· In January 2004 damage to the home of a prison officer by a paint bombing.
· Possession with intent of firearms held by his brother and which he had transported between January 2001 and January 2005 and between February 2006 and December 2005.
· January 2004 possession of drugs.
· Involvement in an attack on a prison officer’s house in NM estate 2004.
· An offence of grievous bodily harm in 2005.
·
A panoply of different violent assaults between 2004
and 2007 in various bars including Madigan’s Bar, the
· Officer in Charge of the UVF in New Mossley July –December 2003.
· In 2007 robbed a bed and breakfast establishment in Portstewart with his brother.
· 2008 stole £2000--£2500 from his parents shortly before handing himself in to police although both his mother and father were disabled and in receipt of benefits.
[272] In all he admitted about 160 offences on 79 counts against him plus a host of charges to be taken into consideration when he was convicted in March 2010.
[273] He admitted drug abuse ingesting such drugs and drink for many years starting in the 1990s and continuing up until shortly before he had handed himself in. He told police his drug habit included ecstasy tablets (“Es”) magic mushrooms, cocaine and LSD as well as heavy drinking.
[274] Ian Stewart’s crimes prior to the Thomas English murder included a similar list. It did not surprise me to observe en passant that when police were pressing him as to his credibility in an interview of 5 November 2008 and were playing the role of devil’s advocate they had suggested to him that he might be portrayed as a murderous violent thief who took controlled drugs, supplied controlled drugs, had stolen from his own family and has had unlawful sex with underage girls. A cursory survey of some of his crimes revealed why this had been said to him given his admission that over last 14—16 years he had committed acts of arson, blackmail, thuggery, theft and robberies:
[275] After the English murder his crimes included
- £2500 taken to Portrush 2007
- various sums of £100s throughout 2007
- £2500 in November 2007
- £2500 in July 2008
[276] This
lengthy roster of criminal behaviour gave me profound concern as to the degree
of confidence I could repose in their recently acquired assertions of honesty.
It occurred to me to me that the rank dishonesty and
irrepressible invention that I discerned from time to time in the evidence of
this dyad was perhaps something that followed inexorably from the world of
unbridled criminality which they inhabited where moral choices are
unconditioned by conventional standards of judgment.
Effect of drug and alcohol
abuse
[277] Common sense coupled with the clear evidence of the Stewarts persuades me that prolonged alcohol and drug abuse can have a deleterious effect on memory and constitutes a stand-alone factor requiring me to exercise caution when considering the reliability of their recollections. Both Stewarts presented as men hopelessly addicted to a lifestyle that threatened their very existence both mentally and physically.
[278] Robert Stewart
recognised that his drink and drug habit had been extensive albeit he did
frequently say that it was much the same as everyone else’s with whom he
mixed. He accepted that he suffered some
physical disability with liver and kidney tests in January 2006 and November
2006 revealing damage as a result of alcohol.
Such was his addiction that even then he had misled the doctors about
the amount of illicit drugs he was taking.
[279]
It was clear, and was largely
unchallenged by Robert Stewart, that his drug habit and alcohol abuse increased
between 2000 and 2008. He was taking prolific
amounts of valium/diazapan (the former is a trade name for diazepam) buying
fake valium on the drug market as well as prescription valium from 2007.
[280] He accepted that prior to surrendering to
police his life was spiralling downwards on drugs and alcohol with more
depression and isolation although he insisted that his UVF membership was
contributing to this condition. He was
engaging in arguments and fights in pubs with Catholics, UDA members,
travellers, etc. He claimed that he received a bad beating in 2004 and that he
went downhill after that taking excessive drugs and drink between 2004 and
2008.
[281] Even a cursory tour through his medical
evidence as raised by
[282] In August 2007 he was admitted to the
detoxification unit in Holywell but left the next day. On 24 August 2007 he attempted to jump from a
balcony and had smashed up his flat. He
was admitted to hospital with an overdose of diazepam. Blood tests established that he was drinking
alcohol though he had denied it. The
interviews with the police from 4 August 2008 right through to the hearing
before me were peppered with instances where Robert Stewart admitted to defects
in his memory because of the effect of drink and drugs over the years walking
out of the hospital when they attempted to perform an assessment on him.
[283] Although Stewart’s recollection in the
witness box was that he had cut down on drinks and drugs between April and August 2008, I believe there was merit in
[284] The interviews with the police from 4 August 2008 right through to the hearing before me were peppered with instances where Robert Stewart admitted to defects in his memory because of the effect of drink and drugs over the years. General admissions by Robert Stewart of the effect of drink and drugs on his memory included:
·
In cross-examination by
·
Upon his admission to Maghaberry Prison in
August 2008 he underwent a mental health assessment. That form records the heading “physical
health issues” that he has “memory loss contributed to by drugs and drink.
·
During the course of an interview on 18 October
2008 he had said “… There was times I would have been drinking 7 days a week
over them years and taking drugs galore and taking 60 mgs of Diazepam and I am
just letting youse know that the things I can’t remember is, they’re the
things, I have actually spent the last 6-8 years trying to forget things I have
done … I have spent thousands of pounds on drugs and prescription drugs and
whatever trying to forget all these things and if that affects what youse think
of me, what youse of me that’s, I can’t change that and the way the drugs and
the drink its affects your memory a great deal towards different things …………..
it’s just it wipes out your brain cells as drink wipes out your brain cells; it
makes you just trying to forget everything …”
·
Later in that interview he said:
“And maybe if I hadn’t been drunk seven days a week
for about six years … or I hadn’t of
took coke for all of them times, if I hadn’t took Diazepam, then my memory
would be 100 times better than what it is now…..… it’s a medical fact, it’s
not, there is no ifs about it it’s a medical fact if you take that amount of diazepam
every day for the 3 or 4 years I have done or and you take that amount of drink
and that amount of this you are not going to be as reliable as somebody that
hasn’t and that’s –
Police – see that’s a great speech for someone like if
I was defence solicitor, I love that, you are just telling me you are not as
reliable.”
·
In an interview
of 6 November 2008 where when he had been describing his drug and alcohol abuse
the witness had said:
“As you can imagine, for a few years if you are
drinking 6 days a week you are taking drugs may be you are taking coke may be 3
days, 2 or 3 days out of the week plus you are knocking 16 milligrams of diazepam
into you every day. You mind starts to
get worse and worse you know what I mean, the tablets aren’t helping it’s just
getting steadily worse and worse.”
·
12 November 2008
commencing at 9.34 am with the HET it is clear that Robert Stewart had been concerned about his memory
saying for example:
“Can I ask you a hypothetical question? My memory is not the best . . . because of
drinks and drugs and whatever . . . if I can be any more precise about things I
would but the point is . . . my mind is vague and there is a reason for that.”
·
On 21 April 2010,
discussing his state in August 2008, he told police” If someone had asked me
what my name was I would not have been too sure “ and “there were pixies running about the state I
was in at the time “
[285] The drug habits of Ian were not dissimilar. He admitted taking cocaine, LSD, ecstasy tablets and had sold ecstasy, amphetamines, speed. He had been taking illegal drugs right up until July 2008 including cocaine.
[286] His medical records since 1995 contained references to ongoing drugs and alcohol dependence, overdoses on a couple of occasions on Ecstasy and LSD and an attempt to take his life in 1995 as very depressed.
[287] He told a doctor in 24 January 2000 he was taking cocaine every 2 weeks and 20 E tabs per week. He overdosed on a cocktail of drugs on 22 June 2005 including cocaine. He told police on 28 October 2008 of his heavy use of cocaine running up debts of £2500 from a number of dealers with bills of about £120 every other day ie £360 per week. He admitted in an interview of 28 October 2008 that he had been selling drugs.
[288] A medical report of 12 December 2007 from NHSCT reported a history of ecstasy tablets, cocodamol, cannabis, cocaine, alcohol and an overdose in 2007.
[289] Stewart admitted that the money he stole from his parents was spent on drugs.
[290] The relevance of all this to the current trial was to be found in the prison record medical note of 4 November 2010 when he told Dr Bownes “My whole life has revolved around drugs and drink. I was all confused and thought I was to be killed at the time”. On 12 October 2010 in a meeting with Dr Bownes he questioned whether he should have gone in to the police station and “whether I can go to court cos I can’t remember everything I said.“
[291] In light of this history of drug and alcohol induced chaos, confusion and memory defects, I had to ask myself how I could be sure that their recollections of the crimes now before me were invested with sufficient precision to ground a conviction beyond reasonable doubt? Did the explanation for at least some of the variety of flaws and frailties that I shall shortly outline in their evidence lie within the pages of these medical reports?
Lies
[292] When
testimony becomes infected with lies in a case like this the court is
confronted with potentially insoluble problems.
Have I discerned all of the lies?
Are the lies confined to only a few of the accused or are they more
widespread? Has the fear of their former
associates driven these witnesses to take steps to ensure that none of those
whom they fear will remain free to attack them irrespective of their
involvement or not in these crimes? Have
they invested e.g. the murder of
[293] It is
common case that the Stewarts lied to the police in August 2008 and again in
September 2008 about the roles of Hinds and McCrum. They maintained their lies
about this aspect of the case despite being explicitly warned on more than one
occasion of the need for absolute honesty in the SOCPA process. They both
indicated that they had discussed leaving out Hinds and McCrum before going to
Antrim Police Station in August 2008.
[294] On 16 October 2008 in a debriefing interview
Robert Stewart implicated McCrum and Hinds for the first time. On that occasion Stewart told the police that
he had been telling lies in the earlier interviews by keeping McCrum out of the
incident in order to cover up for him because
he had been going out with his sister Leanne McCrum for about eight years and that
at that time she was under threat from the UVF.
[295] Both Stewarts accepted that prior to going
to Antrim Police Station on 4 August 2008, they had discussed leaving
McCrum and Hinds out of it. They lied convincingly to the police.
[296] In his first interview of 5 August 2008, at
12.49 pm, Robert told the police that after the hijacking incident, “I think we
put the rep in the bin or something ….. and then just went round, washed our
clothes and then we when up to the Roughfort Bar for a pint”.
[297] In the second interview on 5 August 2008 at
17.32, when asked by the police what happened to their clothes, the witness had
said he was not 100% sure because it was a long time ago and there were times
when those could have been washed and times when they would have been burnt.
[298] In the third interview of 6 August 2008 in
this interview the police suggested to him that his brother had told them that
after the hijacking he went back to a flat which was probably Ian Stewart’s,
took off all your clothing and then he had gone across some wasteland and burnt
the clothing. Robert Stewart had said
“That would probably have been right … I know I said that I may be washed the
clothes. But there would have been other
times I would have washed the clothes”.
[299] Thus Robert initially lied to the police
about the burning of his clothes claiming he had gone home with the clothes and
boxed them. In the first scoping
interview on 10 September 2008, having been told of the importance of telling
the truth, he had held to the lie. In
the second scoping interview of 10 September 2008, when the police asked him if
there was anything that he wished to add to what he had said five weeks earlier
in Antrim he now changed his story to a claim that it was his brother who
picked up the clothes and then burnt them, pleading nervousness at the first interview.
This illustrated a facility for switching from one lie to another with apparent
ease when it suited him.
[300] When
asked by me why he had decided to give a different version about the burning of
the clothes this time by his brother, Robert said that “we thought the first
one was unrealistic or something and the police were unlikely to believe the
first version.” He thus admitted that he
was prepared to say whatever he thought fitted in best at that point. I found
his ability to hold on to a lying story in the face of police questioning and
to change it to something that appeared more acceptable to the police a troubling
development.
[301] As the whole Hinds/McCrum saga came under searching cross-examination, I discerned it unravelling as palpable untruths began to emerge.
[302] A potentially serious example of imagined assignation of a role or even collusive fabrication arose out of the descriptions of what had allegedly happened in the house of Hinds when the replica was being disposed of. Robert Stewart indicated that Hinds had put it under a plant pot at the front of the house. Ian Stewart had given the same explanation in the course of his interviews. However in his evidence before me he was adamant that such an event had not occurred and he could give no explanation of how he had come to say this. He now insisted that the replica had been handed over in the living room and put along with the balaclava and scarves. Of course it could be that he has simply forgotten this event now but I cannot ignore how stoutly he asserted in the witness box that it had not occurred. Common sense dictates that both of them could not have mistakenly imagined such an event if it never occurred. I therefore was unable to dismiss from my mind at least the possibility that the coincidence of both himself and his brother asserting a rather singular action such as this might smack of creative fabrication to produce again an aura of verisimilitude.
[303] That same profligacy with the truth emerged in Ian Stewart’s account to police in August 2008 about the burning of the clothes after the hijacking. His evidence was that he wished to protect McCrum and so not mention his name. However, quite unnecessarily for this purpose, he told police that not only did he burn the clothes himself but he had been ordered to do so by Wood. He now asserts that Wood did no such thing and that he and his brother decided to burn the clothes. It was a complete lie to have involved Wood in this matter. This vein of fundamental dishonesty that permeated his previous criminal record and coursed through his evidence caused me great concern.
[304] Ian Stewart said for the first time in court before me that McCrum had gone outside his house with him and pointed out precisely where he had burnt the clothes behind the Presbyterian church. This depiction was singularly missing from every other occasion over the years when he had been asked the location of the burnt items viz:
[305] I watched Stewart carefully during this evidence. I was certain from his shifty demeanour that he was dissembling and that this was a piece of very recent invention to bolster up his assertions.
[306] I
recognise that criminals are often very unintelligent and completely illogical.
Hence they are often apprehended. At the
outset of the facts about the Hinds/McCrum events I was loathe to lend any
weight to the implausible aspects of the matters described for that very
reason. However as the general air of
untruthfulness and embellishment began to invest the narrative these
implausible aspects took on a more sinister hue in my thinking. These included:
·
Robert Stewart’s
evidence was that at that time there could have been 10-15 members of the UVF
in the estate. Why then not seek assistance from one of them rather than widen
the circle of knowledge by involving McCrum who was not in the UVF and Hinds
whom he alleged was in the Shankhill UVF? Neither of them was able to explain
satisfactorily why this had been done as a matter of pure common sense. Robert Stewart’s suggestion that he could
have been punished even for taking the gun to someone in the New Mossley estate
was belied by his account of another punishment shooting when he and Mark
Guthrie had been involved in a shooting of a man named Red in 2003. The gun had been taken thereafter to a UVF
man’s house called AG. The witness’s
answer to this was simply that that was different circumstances.
·
Robert Stewart’s account was that if he had
told his fellow UVF miscreants that he had given the replica to Hinds they
would have killed him because Hinds was in a different organisation namely the
Shankill UVF. He insisted that there was
no danger of Agnew telling them that because he would have been killed
also. However despite this danger he
could not remember discussing this with his brother and did not discuss it with
Agnew. Why not simply put the replica in a bin and not bring Hinds into it?
·
Why involve 2
people when one could easily have dealt with the replica as well as the
clothes?
·
Why send McCrum
out to burn clothes when the estate was allegedly covered with police presence?
·
How would Hinds
have known they were in the McCrum house and come to inform them of the death
of English? How did Wood know the next morning they were in the McCrum house?
·
Why say Hinds informed them of the death of English between
7.15-7.30pm when the medical evidence is that English was not yet dead at that
time?
[307] I was left with a nagging doubt that there
was rather more to this Hinds/McCrum aspect of the matter than had been
revealed to me.
[308] A
further lack of credibility was displayed in their attempts to diminish their
own role in the murder from an early stage by asserting their participation in
the hijacking was under duress. The sheer implausibility of this proposition is
illustrated not least in their extensive criminal activities on behalf of the
UVF over the years both before and after the killing of
[309] There was strength in
[310] They were both perfectly ready to lie to the
interviewers when it served their immediate purposes. Inter alia, counsel drew
attention to extracts from the interview with Robert Stewart on 5 August 2008
i.e. the day after he had walked into Antrim Police Station where the following
exchange occurred between the interviewing police officer and himself
concerning the leadership of Haddock in the murder of Tommy English:
“
Robert Stewart – He asked who wanted to shoot
him. Me and my brother both says we
definitely do not want to do it, definitely 100% do not want to do that. …..
You know what I mean? He says
well you have to you have to fucking something you know what I mean? …. You
had to do something because you just couldn’t leave that flat then.”
[311] This was
completely untrue and a figment of an all too fertile imagination. Robert told
[312] Later in that same interview he said that
there “there was no option at all”. In
the course of a later interview that day at 17.32 he again asserted that
Haddock had told him to drive to English’s house and “he gave me no option, …
we just drove down and drove back and he had a look at the house. I hadn’t, I hadn’t a clue what the hell was
going on, he just he says “come on, we’re going”. I also believe this is a
complete lie.
[313] It chimed with Robert’s suggestion to the
police that he had no idea what was going to happen to him when he had been
asked to go to the flat coupled with his assertion to the police that when those
in the flat started talking about killing somebody in the UDA “We were
dumbfounded … we were just standing there … there was nowhere you could go at
all. You had to just sit.” This was
unworthy of belief. As Ms McDermott QC
tellingly pointed out, he knew from the previous day that tit for tat murders
were going on during the course of the feud, that a Mr Greer had been
murdered on Saturday night, and that he had been present in the Mount Vernon
Community House for many hours two days beforehand with other UVF members in
case of UDA retaliation with the presence of at least one Uzi sub-machine and
other weapons. What did he think the
arms were for? Why did he think the UVF
were gathering together with such an armoury in the wake of a feud with the UDA?
[314] My concern about the veracity of both of
these men deepened when it emerged that Ian Stewart had also alleged in his
interview of 10 September 2008 that he and his brother had said they were not
going to shoot anybody and Laffin and Agnew had said they were not up to it
either. He now admitted in evidence before me that himself, his brother, Agnew
and Laffin had not said this to Haddock and he was “mistaken”. It seemed to me inherently unlikely that both
brothers had made an identical mistake absent some measure of joint
agreement/collusion to say this before going to police. This invention of conversations by alleged
participants made it very difficult for me to be sure that they were being
truthful about such other pronouncements accorded to participants e.g. that
Haddock had said “this is the worst and best it gets lads “before entering the
flat, that he had made a comment about “missing the kids” allegedly before the
killers set out on their murderous task or that Bond had said “good luck” as they
were leaving the flat.
[315] The theme of deliberately and deceitfully underplaying
their role in the UVF activities found further expression at an early stage
when Robert was asked by police what was his role in the UVF. Notwithstanding
that we now know he has admitted to
being second in command in New Mossley for a period prior to the English
murder, had committed many offences and was in command for a period after the
murder, he replied “Nothing, nothing really”.
Another lie.
[316] Robert
was clearly less than candid with police during the early interviews in August
at the very least when they questioned him about crimes other than the English
murder. In the interview of 5 August 2008 he was asked if he had ever
transported “stuff” for the UVF knowing that he was carrying some illegal
contraband. His response was that he did
not think so. Stewart admitted in cross-examination that this was obviously a
lie because he had transported material—indeed he had been in charge of the New
Mossley UVF for a period in 2003 and persuaded his brother to keep firearms.
[317] He also concealed that he had
carried a pipe bomb and in fact made no mention of any of the plethora of
crimes that he later admitted. When asked in cross-examination to account for
these lies he again relied on a claim of loss of memory. These lies to police were scarcely the
actions of man borne down with remorse for his life of crime.
[318] The Stewarts did not hesitate to invoke
strategies that were transparently deceitful when they thought it aided their
protestations of honesty and enabled them to deflect difficult questions. Examples
include:
[319] Loss of memory. Their assertions of fear of
death at the hands of the UVF when they first entered Antrim Police Station on 4
August 2008 and to Constables Perry and Creighton (and repeated by Ian Stewart
to Dr Bownes on 4 November 2010) but which they both conveniently affected not to recall in their evidence before
me, were clearly jettisoned because it did not fit in with their assertions of
being motivated by conscience. It was too much of a coincidence that that they
both claimed not to remember this. In any event I do not believe that either
could have possibly forgotten the spine chilling fear of death which clearly
engulfed them both in August 2008.
[320] They invoked a fictitious loss of memory
again in affecting to forget discussions
they had had together before going to
the police and before the scoping and debriefing interviews. There was ample
evidence that they had discussed the matter in detail. The following were instances of this in the
evidence:
·
In the interview
of 5 August 2008 at 12.49 pm, Robert Stewart told the police that he thought
there were two pistols in the flat but “his brother thought maybe there was a
shotgun as well but I am not 100% certain”.
·
He later added in
that interview “that his brother would probably remember more than him” and
that “he had sort of sorted the bits”.
·
On 5 November
2008 in interview at 14.35 hours, his brother had made it clear that the two of
them had discussed these matters including phrases such as “of course we
discussed it”.
·
His brother Ian
said in the course of the interview “maybe I help him (Robert Stewart) with some things he didn’t remember”. Robert Stewart in cross-examination accepted
that his brother may have triggered incidents in his recollection but he did
not remember.
·
Later in that
interview the brother Ian indicated that “we spent 1½ weeks discussing
it”. Stewart’s answer to this was that
the interviews were a long time ago and he had some difficulty remembering
them. In short I believe they chose to deny recalling these discussions because
they believed that to admit them would lead to allegations of collusion.
[321] Robert’s roster of excuses why the interviews
of 4/5/6 of August 2008 were beset with inaccuracy, including his recent
consumption of alcohol, drugs, nerves and stress were similarly disingenuous. Whilst
I have already explained that I recognise all of these as viable possibilities
in some instances they are in stark contrast to the independent evidence before
me that police doctors found him fully fit for interview during this period
describing him variously as “lucid/calm/composed” and his having assured police
on 5 August 2008 in an interview commencing at 2.49pm that he was fully “compos
mentis”.
[322] Given
the vagaries of memory that necessarily accompany the passage of time I had been reluctant to
conclude that either of these witnesses had deliberately lied on any occasion
in order to maliciously implicate these accused. I did so conclude however in
the case of Ian Stewart when he related Miller’s involvement in the purchase of
the sledgehammer. His evidence to me was
that Miller and Bond had left the flat at about 3pm to get the sledgehammer/spirit
and were away for about 15 minutes. However his interview with police on 16
April 2009 was extremely revealing. It was at this time that he was shown the
CCTV photographs that had been taken at Hills stores. The various slides had time frames encrypted
thereon. Unknown to him the time frames
were 1 hour ahead of time. i.e. the time shown thereon were one hour later that
in reality. It recorded 3.54pm whereas
it was 2.54pm per the evidence of
[323] Consequently in the interview of 16 April 2009 he claims they left at about 3.15/3.20pm and were away about ¾ hour –i.e. to fit in precisely with the time the man he erroneously describes as Miller is found in the photograph. He expressly mentions to the police in that interview the time on the photographs “cos the time there goes with the time he went for it” – asserting that that was the last thing that was done before Haddock etc left at 4.30pm.
[324] I am also satisfied that so determined was he to fit in the CCTV with his allegation of Miller’s departure to get the sledgehammer that he was prepared to tell the police that he was 100% certain that the person depicted in the photograph taken from the CCTV at Hills Stores purchasing the sledge hammer was Miller. He had said to the police that not only was he a 100% certain but Miller was “somebody you don’t forget” having seen him “dozens of times “. In fact he was incorrect and it was Pollock who was in this photograph. This was notwithstanding the fact that he had seen Miller dozens of times since 1995. This incident troubled me greatly as it indicated that Ian Stewart was prepared to assert total certainty in an instance where, given his knowledge of Miller, the ample opportunity to peruse the photograph and the degree of certainty expressed, a court might well have been prepared to rely on this in circumstances where it would have been wholly wrong to do so. This was an instance of legerdemain that betrayed a lack of reliability on the part of Stewart which was not an isolated affair. It coincided with my conviction that was he prepared to manipulate his account of the timings encrypted on this photograph to tie in with his evidence as to the timing of Miller’s and Bond’s absence from the flat.
[325] As drug
abusers on a simply colossal scale theirs was a lifestyle where lying became
part of the daily diet of living. Some examples will suffice to illustrate the
point.
[326] On 3
November 2006 Robert had attended the community addiction services where he was
shown alcohol related damage to his liver and kidneys. I did not find it surprising that from time
to time during his treatment he had lied to the doctors about the amount of
illicit drug taking that he was taking at that time whilst on other occasions
had admitted cocaine and ecstasy and diazepam bought illegally.
[327] On 24
August 2007 he attempted to jump from a balcony and had smashed up his
flat. He was admitted to hospital with
an overdose of diazepam. Blood tests
established that he was drinking alcohol though once again he lied to doctors about
this.
[328] Even
whilst in police custody he had misled the doctors who saw him on 7 August
2008 by indicating that he had last used cocaine in December 2007 – patently
not correct - and was only an “occasional user” pre 2007 even though it was
clear he had been an inveterate user. When
he met Dr Boreland shortly after his admission to Maghaberry Prison on 8 August
2008 he told the psychiatrist that the last time he had taken a class A drug
was 2007. In fact it had been much more
recent than that having taken coke with his brother during July 2008 and E tablets
whilst living in the flat where he was then residing. Perhaps as counsel suggested he was trying to present himself as a man who was not affected by drink or
drugs when he handed himself in to the police but for me the importance lay in
the regularity of his mendacity on any occasion when for whatever reason he
thought it served his self-interest.
[329] Ian
Stewart also lies with alarming ease. One chilling example will suffice. I have
already adverted to the robbery of his employer that he set up in 1995 whilst
he was working there. He then relied on this bogus robbery to lie to the
doctors at Whiteabbey and Homefirst in 1995 and 1997 with wholly fabricated
medical complaints purely for the purpose of establishing a case of bogus post
traumatic stress disorder and claiming sickness benefit.
[330] He
had told his GP on 22 August 1996 he was suffering from
depression and poor sleep and was
unable to return to work due to memories of “the robbery” which enabled him
to obtain sickness benefit. Stewart subsequently obtained a job with Marks and
Spencers but left after a short period again claiming that intrusive memories
of the previous robbery prevented him continuing.
[331] This lie was invoked yet again in January 1997 when he told Dr Dukes that “men came in and threatened him with a gun and he thought he was going to be killed and then he was alright for a few weeks but began to have nightmares and increasing alcohol ….. he was unable to cope and return to work”.
[332] He repeated the same lie to Dr Bownes as recently as 28 February 2011 in circumstances where Dr Bownes was to report on his behalf to the Life Sentence Commissioners. He told Dr Bownes he left his job at the filling station due to his sense of vulnerability to a further similar experience. He denied in court that he was telling lies but told me that he does not know why he said that to Bownes. He in fact used this fictitious story to assert that he had never lost employment save for this disability.
[333] His role in that robbery was an illustration of creative dishonesty on a frightening scale. He had been able to convince his manageress, the nearby security man and even the police of this utterly fictitious story. He thus has a record as a convincing liar when he deems it in his interests to do so.
The circumstances of becoming prosecution witnesses
[334] A
cornerstone of the evidence of the Stewarts had been their joint assertion that
a measure of their truthfulness was to be found in their willingness to admit
the murder of
[335] According
to Robert and Ian Stewart the factual background to their surrendering to
police on Monday 4 August 2008 was that both had left New Mossley on 24 July
2008 to go to Scotland and thereafter transferring to England. They then returned to Portrush where they
stayed in a bed and breakfast establishment financed by the money they had
stolen from their parents namely about £2,000.
When Ian had bought a copy of the Irish News they saw the advert
concerning the Historical Enquiries Team.
Robert Stewart could not say if they had noticed the £1m being provided
to the Historical Enquiries Team. They
had discussed already the possibility of going to the police. They did not want
to go back to New Mossley, they rejected the things they had done and wanted to
hand themselves in.
[336] During
the course of their evidence the Stewarts variously informed me that the reasons
they had gone to the police 8 years on from the murder were:
·
To clear the books
and to come clean in the belief they would serve life imprisonment because
these crimes had been eating away at them.
·
To cease being
the persons they had been anymore. They could not live with their lives as
before and now felt a lot better for it.
·
Life was not
worth anything given the catalogue of crimes they had committed. It was this
that was fuelling their abuse of alcohol and drugs.
·
On the day of the
English murder, Robert claimed that when he heard the ambulance drive past
after the hijack, his life changed from that moment. It was a defining moment
and he had become a changed person. Ian claimed that he could not deal with
being involved in the murder.
[337] They
denied handing themselves in because they were on the run from the UVF, or any
discussion with the police about handing themselves into police because of fear
of death from the UVF. Indeed Ian
Stewart specifically asserted that he had not felt any such fear. They also
denied that they wanted out, and wished to do a deal to trade information to
the police in return for protection. They denied ever being prompted by a SOCPA
“deal”.
[338] I do recognise that the hearts of even the
most hardened of criminals may eventually be stirred by conscience. Such a
Damascene conversion could even conceivably be triggered by such a heinous
murder as that of
[339] However, I was unable to accept such an
hypothesis in this instance. Indeed as I observed their cross examinations unfold
I became convinced that such assertions were made to conceal their real
motivation and proffered in an attempt to create an air of verisimilitude around
their evidence. My reasons for so concluding are as follows.
[340] I am
satisfied the real motivation of these men was betrayed in the course of an early interview with Andrew Perry, a police officer
on 5 August 2008 where he recorded the following
note about his interview with Robert and Ian Stewart:
“I asked why they had waited nearly eight years to
come to the police. At this stage both
brothers were providing information.
They stated that they had carried the guilt for the previous eight years
and they were both taking a high dose of diazepam due to depression. Also they were aware that the Historical
Enquiries Team had been provided with £1m to further investigate historical
crimes. They believed that the Tommy
English murder was one of the crimes that would be further investigated. They also knew that the UVF members
responsible for the murder knew this.
The two brothers believed that the persons responsible would try and
eliminate the ‘weak links’ and they believed that they were ‘the weak
links’. They stated that recently they
had noticed that friends had stopped talking to them. Approximately four weeks ago Robert had
unknown people outside his house in the early hours of the morning. He ran from the house for his own safety. About 12 hours later the second in command of
the UVF in their area, spoke to him about the intruders, which made Robert
believe that the intruders were UVF members.
They stated that due to these incidents they believed that they were
going to be killed. They stated that
they were in fear for their lives and would provide the police with all the
information they had and would stand up in court and point out these men in
return for police protection. I
explained what was involved in the witness protection programme and how they
would have to comply with all instructions.
Both brothers stated they knew what they would be required to do and
stated that they could no longer walk anywhere in
[341] DC Perry
goes on to record that they told him they were aware of the role of the HET in
relation to the investigation of the English murder, that they were the weak
links and feared assassination, that they wanted protection in return for
information and that they didn't want to “end up in a quarry with their faces missing”.
[342] I am
certain that it was this rift in relations with other members of the UVF and
fear that they were to be murdered that now dominated their thoughts and
actions. Coupled with the attendant spiralling descent into drug and drink
fuelled depression, this led to the events of late July and early August 2008.
[343] Thus in
an interview of 6 November 2008 with police, I believe Robert Stewart
accurately depicted his frame of mind as it existed in July 2008 when he said during the course
of that interview:
“It got to the stage where I was staying in my mum’s
sometimes I was actually sleeping on the floor of my mum’s house. The depression just got that bad. And you didn’t know whether they had a
problem with you or they didn’t . . . but I felt there was cos I was distancing
myself from them anyway. They knew that,
and even when I seen them I was arguing with them so it was just getting that
position with the drink and the tablets and all that. It wasn’t something I wanted to be involved
in any more.”
[344] Robert disclosed how in 2004 he had received a bad beating at the hands of UVF members and, as regularly occurs with such low intellect violent criminal thugs, they turn on each other at some stage and now it was the fate of the Stewart brothers to bear the brunt of their displeasure.
[345] I am satisfied that Ian Stewart, despite his persistent denials to me, felt he too was under threat. If further evidence of this was needed one had only to read his prison medical notes of 4 November 2010 when he revealed to his psychiatrist Dr Bownes “I thought I was to be killed at the time I handed myself in”. His denial of such fears to me in court were untrue.
[346] These revelations had nothing whatsoever to do with conscience or “the right thing”. I am convinced that it was fear of impending death at the hands of their former associates in the UVF, not conscience, which impelled their arrival at Antrim Police Station. These were men who could not survive the high octane temperatures of UVF membership and felt they had run out of options. They were prepared now to seize the opportunity afforded by the HET. “Doing the right thing” had scarcely been their leitmotif to date and I was singularly unpersuaded that matters had now changed.
[347] In return for protection they were prepared to assist the police. This was a salient feature from the very outset. Detective Constable Creighton's statement of 5 August 2008 records the following exchange with the Stewarts:
“If given police protection, they would give
police all the information they could. Both brothers stated how important it
was for them to need witness protection and asked what it would involve.
Detective Constable Perry explained that to the best of his knowledge they
would not be able to return home and possibly not contact any of their extended
family and when directed by the person in charge of them to do a certain thing
they had to do it otherwise they would be out. It was explained they may be
moved to
[348] Despite
their reluctance to acknowledge it in the witness box I have no doubt they had
read and carefully digested the article in the Irish News of 31 July 2008
revealing that the Historical Enquiries Team was carrying out a substantial
investigation with additional government funding (the £1m referred to by them
in the interview mentioned above) and that the article made clear that they had
started already to find some evidence. I consider there was much merit in the
suggestion by counsel to the Stewarts, specifically denied by them, that they
probably had discussed the fact that others had been talking to the police and
rather than “be pushed they jumped”.
[349] It was highly significant that both Stewarts claimed no recollection of these telling interviews, the sentiments expressed therein or the Irish News article. It was characteristic of much of their evidence that when confronted by independent material that contradicted their accounts they called in aid lack of memory. Robert Stewart said that whether or not he read the article, and he could not remember this, he was in a bad state and wasn’t that “smart” at that stage. Ian Stewart not only eschewed any recollection of this interview but asserted he never was in fear of the UVF in any event. I find such comprehensive bilateral lapses of memory wholly implausible.
[350] On the very day that the Stewarts handed themselves into the police it had been reported in the Belfast Telegraph that the modest 30 month sentence imposed on a man called Burcombe—an accomplice to murder who had given evidence against his accomplice under a SOCPA agreement and who was described as “the first supergrass in decades” - was not going to be reviewed by the Attorney General. Whether they were truthful in their denial that they had read that article also before surrendering to police I know not but I am satisfied they were aware of the possibilities opening up in the wake of the HET investigations.
[351] I was convinced
that the Stewarts were untruthful in their assertions that they had no recollection
of any discussion about SOCPA with their solicitors or the police concerning
the possibilities of a reduced sentence virtually from the outset of their
detention at Antrim Police station. Robert Stewart told the court that on 4
August “and even long after that” he and his brother had never heard of a SOCPA
agreement or anything about a possible deal.
Later, when cross-examined by Mr Adair, he resiled to some extent
from this saying that he was not sure when he heard about it.
[352] It was about one month later he claimed that a
scoping process started and they were asked to sign up to the agreement against
their old friends i.e. he knew about SOCPA some time in September 2008.
[353] Ian also denied any discussion about the SOCPA legislation or the possibility of a reduced sentence for assisting the police before October 2008.. I am satisfied that both brothers became aware of the possibility of a SOCPA agreement some time during the course of 5 August 2008 i.e. the day after they had handed themselves into Antrim Police Station. The independent evidence points inexorably to this.
[354] On 5 August 2006 there is a record of Ian consulting with his solicitor before his interview at 2.30 i.e. from 1.40 pm for 40 minutes. At 4.15 pm, his solicitor again came back to consult with Robert Stewart before being re-interviewed at 5.29 pm.
[355] The
record similarly records Robert seeing his solicitor between 10.39 and 12.00
hours i.e. before the first interview commenced at 12.45 pm. He saw his solicitor again at 16.14 hours and
16.37 hours with a requirement by him to speak to the police off “tape” with
his solicitor.
[356] I heard
from Stephen Hobbs who was the senior officer for the Historical Enquiries Team
in January 2009. On the SOCPA issue, his
evidence was important in the following respects –
·
He asserted that
on 5 August 2008 at 4.45 pm, he had met with both Stewarts in the presence of
their solicitors and
“SOCPA agreement debriefing
‘Sentence reduction in certain circumstances’
‘I have informed PPS/witness protection they and the
witness protection are supportive at this stage’.” –.
·
It was his belief
that the request for the meeting had likely come from the Stewarts and/or their
solicitors before 4.45 pm on 5 August 2008.
SOCPA was clearly an issue “on the table” and he recalled both men
appearing contrite and sitting quietly and listening to what he had to say
about SOCPA.
·
Whilst he
indicated that he was only giving the briefest of outlines of SOCPA – indeed he
felt at that time few people were fully au fait with SOCPA including solicitors
– he would have given a broad outline to them.
·
He had, however,
contacted the PPS about 3 pm and had spoken to a representative there relating
what had happened and engaged in a discussion about SOCPA.I regard it as
inconceivable that he would have taken these steps if the possibilities had not
been discussed with the Stewarts and their solicitors. It was impossible to
confirm this with the Stewart solicitors because the Stewarts refused to waive
professional privilege.
·
[357] I am
satisfied therefore that the Stewarts
were fully aware at least some time prior
to 4.45 pm on 5 August 2008 that an
approach had been made to both the PPS and the witness protection people to
investigate the possibility of potential agreement under SOCPA. Indeed the note specifically states “Allows
for sentence reduction even in murder where someone gives
evidence/intelligence”. It goes on to
record at page 2:
“It would involve you in telling the truth about all your
own criminality and being dealt with prior to giving evidence against others. PPS
are aware of where we are. They are
supportive at this stage and we will see what develops. What we have to do now is deal with case in
depth. We will have a number of
interviews with you shortly to clarify a number of issues.”
[358] Later in
the interview on record that day there is a note of the HET officer
“Look, we have been as honest as we can and we have had a consultation with your solicitor. At the end of this interview, and we obviously need to interview your brother . . . we will look at the veracity, we look at the truthfulness”.
[359]
“I was just going to say that we are going to interview
your brother, we have interviewed yourself OK?
Now my senior officer is
[360] The
whole matter of SOCPA was again revisited at the commencement of the scoping
interviews on 10 September 2008, when a full explanation was given to the
Stewarts about the scope and meaning of the Serious Organised Crime Police Act
2005 concerning a person who wishes to volunteer information in the context of
individuals who have criminal convictions and have the ability to assist police
with investigations. They were told that
under Section 71 of the Act immunity from prosecution can be given for people
who volunteer information to the police.
The interviewing police officer from the PSNI told them that he was not
going “to try and wipe your eye here” and that immunity from prosecution was
extremely hard to get. The officer then
went on to explain that under Section 72 giving information and evidence can
lead to a reduction in sentence. The
officer made it clear that his solicitor did have knowledge about how this all
worked and that they could seek clarification from him on this issue. I
accepted this evidence and therefore I have not the slightest doubt that this
whole issue was discussed with the Stewarts at this very early stage.
[361] I am
acutely aware that both Stewarts did undergo a great deal of interviewing
between August and December 2008 and understandably it may be difficult to
pinpoint exactly when particular items were discussed or events occurred. Nonetheless I find it inconceivable that they both could have forgotten these early
discussions entered into with solicitors present and those opportunities
afforded of prolonged discussions with them about the implications of what was happening.
[362] If, as
they asserted, the Stewarts believed
they were facing life imprisonment when they entered Antrim Police Station, this
must have constituted a sensational turn of events literally within hours of
their surrender whereby they might now receive a reduced sentence in return for
their assistance to the police. If, as I believe it to be the case, they were
already aware of such possibilities, the confirmation would have been equally striking. Such a development and its effect on their
future lives would be etched permanently on their minds. Why then did they deny
recalling it at that stage? Is it conceivable that even in the unlikely event
of one of them forgetting it, both have forgotten this? I am convinced the only
reason can be their determination, whatever the independent evidence revealed,
to eschew any connection with a bargain whereby they would gain some benefit in
return for giving evidence against the accused - even if this meant lying to
the court.
[363] It was the case of both Robert and Ian
Stewart that they could no longer live with the guilt of the murder of
[364] I could not reconcile these sentiments with
the plethora of crimes that they committed after the date of the murder. A cursory glance at paragraphs [271] and
[275] of this judgment outlining the continuing crime wave of which they were
part after the murder of
[365] The plain
fact of the matter is that from the very outset, far from being beset by
conscience and wishing to make an entire clean breast of their involvement in
the murder of Thomas English, they had attempted to diminish their role as far
as possible.
[366] Constable Perry was the first person to
speak in any detail to the Stewarts on the 4th of August at Antrim
police centre. His uncontroverted account is that “David stated that he and his brother were visited by UVF members and
told that both of them would be holding the taxi driver whilst members used the
taxi to go the address of English and murder him. Both of the brothers stated
they were forced into doing this because if they refused they would be murdered
themselves.”
[367] Hence in
Robert Stewart’s statement of 4 December 2008 he stated:-
“Although charged with the murder of Tommy English I would like to point out, I wasn’t actually involved in the killing of him but was ordered to do an act associated with his murder (kidnap of a taxi driver). I have not killed anyone and would never commit an act like that. This murder was committed by a member of the Ulster Volunteer Force. I was part of the UVF and ordered to kidnap the taxi driver. By order I mean any instruction given to you by a high ranking UVF member. This order had to be completed on fear of you or your family’s life. A high ranking UVF officer could order you to do anything, with the exception of actually killing someone. So as I was ordered to complete my part in the English murder. I believe I was under duress. The idea of this statement is that it will act as a forerunner to any trial I am asked to give evidence on. I will make further detailed statements about the specific offences.”
[368] When charged Robert Stewart claimed that he had acted under duress. In each interview even where he admitted membership of the UVF it was suggested that he said that he had to do this.
[369] I discerned
no genuine feeling of remorse during the evidence of either of them. Hence it did not surprise me to learn from a note
made on 19 January 2011 by a welfare officer visiting them in prison that the
Stewart brothers were raising concerns about the credit they were being given
by the Parole Commissioners in light of the fact that certain therapy had not
yet been commenced and they felt they would not be released after all in August
2011. They stated that they might seek
legal advice on the matter of release and they would not make up their minds
whether to give evidence in the forthcoming trial which was due to commence in
May 2011, until April 2011. They stated
that they might refuse to give evidence and serve their full tariff
accordingly. Scarcely the actions of men consumed by remorse and fuelled by the
desire to “do the right thing“. On the
contrary it confirmed my view that these were men bent on bargaining for their
eventual freedom.
[370] In truth
I have concluded that the these men rarely had self interest absent from their
thoughts throughout this whole matter. The question of how they were to present
themselves and secure their future was never far from the fore of their minds
from the very earliest stages of this process. An illustration of this is found
in references in Maghaberry Prison on 27 August 2008 to a referral with a
psychiatric expert. The reason for the
referral and the relevant findings include the following note from the prison
health records of Robert Stewart:
“Describes past history of admissions to hospital on account
of PTSD … Has been on diazepam 60 mg
daily … and is adamant that he needs to have a high dose. Currently weaning down. Claims the situation could be serious for
him, family and friends if his presentation to the authorities is not handled
right.”
[371] That
theme was picked up again in a note by Nurse Rhonda Fegan at Maghaberry Prison
where she recorded of the witness:
“‘Says he is not happy about the reduction in the diazepam
since committal. Quite keen to point out
that any reduction could affect how he presents his story to the ‘authorities’
and how the consequences could be serious’.”
[372] I have
concluded that the admissions of the Stewarts were unlikely to be borne out of
conscience. These were not men burning
with shame for past misdeeds. It is much
more likely that the motivating factors were self interest perhaps fuelled by
rage against and fear of former associates and desperation calculated to secure
the best outcome for themselves. Their assertions of conscience driven actions
were hollow and implausible, an attempt to work the system to their own
advantage and in the course of which they were prepared to say anything that
served their self interest Their
persistent lack of candour in this sphere was a factor that undermined
substantially my confidence in their overall credibility.
[373] There is
no reason why out of fear for their own safety these witnesses should not have
been telling the truth. Conscience is
not necessarily a greater guarantor of truth than fear or even for that matter
naked self interest. Having something to
gain by making revelations does not automatically flaw the content. The problem arises however when the witness
deliberately attempts to conceal the fear and self interest factors by wrapping
them in a spurious assertion of conscience.
At that stage the court must reach a conclusion as to why the witness is
wearing this mask and make a considered assessment as to the consequences of
such deceit in the context of a search for reasonable doubt of the guilt of the
accused.
[374] Is it as
simple in the instant case of the Stewart brothers neither of whom struck me as
very intelligent, of deciding that they are more likely to be believed if they
plead conscience? Criminals often
foolishly try to improve on the basic tenets of their case and in doing so pull
down the whole edifice.
[375] Alternatively
is it something much more sinister? Is
the fear that they have for their erstwhile terrorist colleagues in the UVF
such that they intend to ensure they are no longer in circulation to threaten
them by placing at least some of them, perhaps even the main protagonists in
the UVF, into these most egregious of crimes irrespective of whether they were
involved in these particular offences or not?
Is the fear factor such a pivotal factor in these revelations that they
now eschew any connection with it?
[376] The fact
that they have both opted for this approach clearly illustrates that they had
discussed it or that both have a profound concern about revealing the truth
behind their motivation.
[377] A
further alternative is that they have acted out of neither conscience nor
fear. Their concern may be rather that
the HET were closing in on the English murder and they have elected to obtain
the best deal available and start a new life out of the chaos of the past. The danger is that such an approach leads
them to wish to curry favour with the police and give good value for the
bargain contemplated by naming and involving in these crimes the leading
members of this criminal gang irrespective of whether they were engaged on this
occasion or, if they were, what role they had played and knowledge they
possessed.
[378] In truth
I am left in the dark as to their real motivation. In all of this I am confronted with the
chilling possibility that whilst they may be telling part or even most of the
truth, they may have falsely implicated one or more men who on this occasion
either were not present or played a much less significant part not amounting to
murder in the English incident or joint enterprise in the Mr X incident . This could be anyone from the very top of
this gang to the very bottom. I have no
way of knowing.
A confusion of crimes
[379] One of
the primary dangers with the evidence of the Stewarts was that they had been
engaged in so many crimes of a similar genre that there was a risk that the
personnel involved became confused from one crime to another. . Clear confusion
of one crime with another was a primary reason for my decision to dismiss the
charges in relation to Caskey and Webster at the half way stage of this trial
.Whilst at that time I considered this danger was less likely in the English
murder and the Mr X case where the witnesses assert they have vivid memories of
these incidents aspects of each may conceivably have a resonance with other
crimes.
[380] I make
no apology in this context for repeating illustrations of this issue that I
derived from the Caskey incident. Robert Stewart made copious references to the
difficulties in recollection occasioned by the passage of time in this
incident. Indeed he had not recalled it
during the litany of offences that he was admitting to the police. The evidence
about this incident was riven with dangers of mistaken identity including the
following:
[381] At the
outset of the first interview when he was discussing this incident it seemed as
if Robert Stewart may have been confusing two incidents when he said:-
“The last time
when I was over I told you about another one that was on the lane, that’s maybe
what’s confusing me and I haven’t mentioned the two of them … but one was as
bad as the other”.
[382] Revealingly
in an interview of October 2009 in the Caskey debriefing the police again ask
Robert Stewart about the arrangements
for the beating of the victim and the
following exchange occurred:
“And can you remember any of the arrangements being
made, you know where, where this guy is being taken to, where it is going to
happen, had they a plan.
Stewart – There is no, there wouldn’t be much planning
necessary you know what I mean, sure where we are, it’s the lane as I say is
only across … I mean see any as I say all these kneecappings and beatings and
all and even with the taxi for the murder it all went off that area.”
[383] What
concerned me about this exchange was that the regularity of use of that area
for this kind of offence could lead to Robert
Stewart to elide the various crimes and unwittingly become confused about the differing events
and who exactly was involved in each incident.
[384] Again in
an interview in October 2009 on the Caskey incident when speaking of what would
have happened to the balaclavas and weapons after the incident he said “what I
am saying is exactly what would have happened cause it happened maybe on other
occasions”.
[385] When the
police in an interview of June 2009 informed him that Caskey had claimed that
Haddock was there as well the following exchange occurred between the police
and Stewart:
“Police – And he said that Haddock was there as well,
would you have any recollection of that?
Stewart – He could have been there, see at that time
as I say we were we were young at that time and he would have come up to near
everything you know to get us at the start. …
To get it sort of started if you want to put it like that you know what
I mean. … He would have come up him and there was
always him and Moore and Reggie … and Bonzo.
Police – Well he said that throughout the attack he
can recall Haddock shouting instructions.
Stewart – That’s probably quite right.
[386] Of
course he later was adamant that Haddock had not been involved in the beating
but at the time of this interview he appeared quite willing to accept he was.
Was he prepared to invest any incident with one or more of these four people if
he discerned the police thought they had been involved?
[387] A final
example of this danger in the Caskey context is revealed in the exchange with
counsel which occurred when he was being pressed as to why he had assumed Moore
was driving the victim in a car with Haddock and Miller.
“A. Well, as I say, I am trying
to remember things, one thing upon another thing upon another thing over and
over. This is my whole life I've tried to remember here. I know, but it is the same maybe 15/20 people
all the time. So I'm trying to - I wouldn't put somebody there if I didn't
think they were there. But, as I say, I don't have your client doing
very much, you know what I mean.”
“Q. You say, "He, he wasn't doing it,
okay, he was just dropping the fella off", and then they ask you,
"What about Darren Moore? Aye, he was driving the car". Well why did
you say that?
A. Because he always drove the car.
Q. So because he always drove
the car you translate that into he was driving the car?
A. They would have had a staff car and he would have drove that car on a
regular basis. “
[388] I remind
myself that in evidence before me when describing the scene in the community
house in Mount Vernon on Sunday prior to the English murder Robert Stewart had said “There were quite a few guys like
Haddock, Moore, Bonzo and Miller, the usual crowd. They were always together”.
[389] That same theme emerged in the course of police debriefing interviews when Robert Stewart confessed that he had been involved in August 2003 in a kneecapping of a man together with another miscreant G. Significantly at this stage in his evidence before me about this incident Robert Stewart said that he had been involved in “a lot of things” “mostly with ten people” at the “same places” and that it can be confusing. In a later exchange he said that when someone had committed as many offences as he has done, he has to try and get it right in his mind. He was considering 14 defendants over 14 years with thousands of pages of interviews.
[390] After the
kneecapping had been carried out by himself and G he had taken the gun to
[391] Of
course Stewart is right in asserting
that many of these accused spent time together because there was police evidence of sightings
in abundance of several of these accused regularly being in each others company.
·
On 25 February
2000 the integrated computer intelligence system recorded that on 28 October
2000 at 1.40 am a stop check was carried out on a yellow Hyundai vehicle at the
·
On 11 May 2000
three persons attended at the local police station to make a complaint namely
·
At 1350 on 31
October 2000 at
·
On 2 November
2000 on the
·
On 7 November
2000 a BMW IAZ8001 was observed on the
·
On 12 November 2000
Bond, Miller, Haddock and
·
On 11 June 2001
in the Ballyvesey area in New Mossley police sighted Haddock, Miller and Agnew
together and overheard Haddock and Miller calling the other man Samuel.
·
On 17 October
2001 in the New Mossley area near the shops referred to in his case at 11.15
am, the said BMW IAZ8001 and a green Citroen registration number AKZ 2875 were
parked beside the shops. Haddock was the
driver of the BMW and his passenger was Wood.
[392] However
this has triggered my concern that in an
incident such as Mr X or even parts of
the English murder where their memories
are flawed by the passage of time as to central and less
central figures and where recollections
have been punctuated by uncertainty throughout the interviews, there is a
danger that unwittingly the Stewarts may
be placing people in the frame on the basis that they have been present at
similar incidents and they are unable to
effectively distinguish between one incident and another of that kind. Was this
a possible explanation for the widespread confusion of participants and roles
which coursed through their evidence and to which I shall now turn?
A confusion
of participants
[393] It has
been a matter of profound concern to me that the Stewarts have on several
occasions wrongly implicated persons in crimes during the police interviews and in court before me. The risk of injustice in convicting someone
who was not even at the scene of the crime has been to the forefront of my mind.
[394] Before
turning to examples of this aspect of my consideration I reminded myself that
an accomplice may give false evidence out of spite or he may exaggerate, change
or invent an accused’s role in a crime
in order to minimise the extent of his own culpability or to include
those he senses the police wish to see convicted .
[395] In the Webster incident apparently there is independent evidence that
Bond was in prison on the date the Stewarts both say he participated in this
offence i.e. the incident occurred on 19 December 1996 and his custody record
before me asserted that he was in prison between 1 October 1996 and 30 December
1996.On the assumption that this is correct ,an assumption which I am constrained to accept, it is an
extraordinary coincidence that both witnesses made the same mistake.
[396] I
observe that this was not the only occasion in this incident when Ian Stewart
erroneously identified a person as being present who clearly was not. In an
interview of 18 February 2009 he said that Haddock arrived with Miller, Moore,
Bond, Davy Miller and a man called Stocky.
I noted that Stocky according to his brother Robert was the father of the boy who had been the subject of the funeral they had
been attending. Initially in this
interview Ian had named 10 people including Stocky but left Agnew out. Shortly
after he gave the names again including Stocky but adding Agnew ”was there as
well”. He subsequently omitted any
reference to Stocky and admitted to me that it was an error to have included
him.
[397] In the Caskey incident such was the weakness
of Robert Stewart’s recollection that when speaking of the incident in June
2009, he canvassed that three men namely T, M
and G were involved whereas now
he is satisfied that he was erroneous in implicating them.
[398] In the Mr X incident the Stewarts variously
made inconsistent and contradictory statements about the presence of
[399] Ian
Stewart identified the presence of
[400] When
police reminded him in April 2010 that there was no mention of
[401] Ian
Stewart’s explanation for erroneously inserting Moore into the frame was that
he was getting things straight in his head and
it had taken some time to clear things in his memory. I had to bear in mind that he had first put
[402] In this
context I recalled exchanges I had with the witness on 7 November 2011 and 24 November
2011 about the reason why he had wrongly implicated
“Q. MR
JUSTICE GILLEN: What was it about the incident that made you think
A. Probably
because a lot of the time Darren Moore was there and that's probably what made me
start thinking at the time..
Q. MR
JUSTICE GILLEN: You can't give me a reason why you thought it was
A. I
couldn't honestly tell you, I don't know why I said that.
Q. MR
JUSTICE GILLEN: Could it be that you believe that
A. Possibly, that at the time, that could
have been how it happened.”
……………………………………………………………………………………………
Q.
MR JUSTICE GILLEN: You see,
A. The
Witness : I honestly don't know, my Lord, I didn't know that, I just really
don't know why I said it, I can't remember.
Q. MR JUSTICE GILLEN: I know you don't know why, but do you think
that's possibly the reason?
A. The Witness: That could be possible,
yes.”
[403] There was a similar flavour in the Caskey case, again involving
[404] I digress at this stage from the purity of this section dealing with illustrations where
people clearly not at a scene were identified as being there, to record my
overall concern at the pattern of late implication of Moore (especially by Ian
Stewart) or contradiction between the Stewarts as to his presence which
emerged on several occasions.
[405] In both their
initial interviews on 5 August 2008 the Stewarts only belatedly mentioned
[406] The remarkable
joint omission of him from the reconnaissance visit to
[407] Ian
implicated
[408] Ian
Stewart initially had his brother and Moore being sent to get the white spirit
in interview 10 September 2008 (which he later retracted) whilst Robert never
involves
[409] Moore is
belatedly cast in the role of making the call for the taxi by Ian Stewart when
both initially claimed it was Laffin and
Robert remained wedded to Laffin as the culprit.
[410] Whilst
Robert Stewart never implicates
[411] It
seemed to me that there was a concerning tendency to implicate
[412] I return
now to other instances where both witnesses had erroneously accused people of
being at the scene.
[413] In the English murder Ian had placed Miller at Andy’s stores purchasing the sledgehammer notwithstanding that it was clearly Pollock.
[414] In an interview on 6 August 2008 he described the Miller who was present as someone different from the Reggie Miller in the dock namely a David “Whitecap “ Miller who is allegedly a member of the UVF in Mount Vernon, an albino and is missing part of an ear. Whilst there may be some merit in Ian Stewart’s explanation that he was nervous and became simply mixed up on this occasion it does illustrate the danger of him implicating erroneously someone who regularly associated with that group.
[415] Wrongly
implicating Miller became a recurring theme with Ian Stewart. He accused Miller of swearing him into the
UVF in 1994 on the basis that he recognised his voice since he spoke with a
slight lisp or stutter. In fact Miller
has neither speech defect and it cannot therefore have been him who swore in Stewart.
[416] There
was considerable evidence from people present (which is accepted by the
prosecution) that satisfied me entirely that Bond had been present at a family
funeral and burial at
[417] Hence I
neither accept Ian Stewart’s unbending assertion Bond was at the shops prior to going to the flat
nor Robert’s somewhat less certain assertion to the same effect. I had to bear in mind that this was not the
only occasion when there was independent evidence suggesting [that they had
imagined the presence of Bond.
[418] Bond featured
in another instance where the independent evidence suggested his absence. In an interview of 16 April 2009 Ian Stewart
suggested that Bond had driven him to meetings of the UVF and parades. However I had before me evidence from a
document showing the custody record of Bond which placed him in prison between
27 October 1998 and 27 October 2000. Stewart’s
assertion, when confronted with this evidence, that it must have been in
earlier years was unconvincing because he had been speaking in the specific
context of Bond having this car at the time of the English murder in October
2000.
[419] Bond
again was misplaced by Ian Stewart in his first interview in August 2008 when
he claimed that Haddock, Miller and Bond came up between them with the name of
English whereas in evidence he was
insistent that it was Haddock alone who produced this name. When I asked him if
he could have mentioned Bond and Miller simply because they were always there
when Haddock was about he agreed that could have been the case.
[420] In
August 2003 Robert Stewart confessed that he had been involved in a kneecapping
of a man together with another miscreant G.
Describing that incident, Robert Stewart said in evidence that he had
collected a gun from his brother Ian’s house with two bullets. After the kneecapping had been carried out by
himself and G, in
[421] However
in an interview of 14 October
[422] It then
emerged in the interview of 17 October 2009 that he not only failed to mention
AG, but said that he thought the gun was given to another man called RB. However he claimed before me that he was now
100% certain that it was AG and that mention of RB was simply a mistake because
RB had never been involved in that incident.
[423] Significantly
in the interview of 17 October 2008, describing that on 14 October 2009 he had
taken the weapon to AG’s house, he said “He had a wee shed out the back of it
and he put the gun in the shed” adding “I think that’s that time”. He explained this latter statement by
insisting that he was trying to remember exactly things on that exact day but
did not remember why he had said that particular comment.
[424] I
recognise that such is the frailty of memory over a long time that anyone can
make a mistake about identity particularly when as mentioned above it may be
difficult to distinguish one crime from another. However it was the frequency of this occurrence
in the course of the Stewart evidence
that troubled me most.These were protean performers who appeared to switch
rapidly on occasions from crime to crime and person to person . I was left to
ponder whether this betrayed an alarming lack of recognition of the seriousness
of their task and the reckless irresponsibility that characterises most
criminals , simply another example of
utter confusion as to personnel present at specific crimes because of
the sheer number of them or in some cases raw fabrication
A confusion
of roles and words of alleged participants
[425] As I
have indicated earlier in this judgment I fully appreciate that even witnesses
who are entirely reliable and truthful
as to the substance of an event and the main participants may be flawed
in recalling or retelling peripheral details including precisely who said something
or who did particular things in the course of the event. Their account on such
matters may well change as their memory unfolds. There were a number of such perfectly
understandable instances in the evidence of the two Stewarts which did not
serve to undermine my confidence in them as indicated in paragraph [255] of
this judgment.
[426] Profoundly
troubling however were the instances where both Stewarts exhibited instances of
what I shall charitably term lively
imagination which showed no true appreciation of the gulf separating truth from
falsehood. They ascribed imagined
roles and words to those whom they claimed had participated in the crimes as if
they were facts. Some examples will
suffice to illustrate this trend.
The Mr X
incident
[427] Dealing
with the Mr X incident the probabilities may well be that Haddock
was involved in this incident and indeed in many others as a director and
organiser. The problem I have however in
attempting to convert a conclusion on the balance of probabilities into being
sure beyond reasonable doubt springs from the fact that Robert Stewart told the court that those who
had gone into the house to beat up Mr X were Wood, Bond, Miller, his brother
and himself i.e. Haddock had not been personally involved in the beating itself.
[428] This flatly
contradicted the information he had given to the police in the scoping
interview on 10 September 2008 when he had asserted that Haddock had gone into
the house with a baseball bat and had beaten Mr X. His answer to this was that he must have been
mistaken at the time because the police were looking for bullet points only.
Why would this make him imagine Haddock had acted in this manner?
[429] In the
interview of 18 October 2008, the interviewers had been going through with
Robert Stewart the identities of those who had gone into the house, and he had
identified himself, his brother, Alex Wood, Reggie Miller adding “And I think
it was John Bond, I’m not 100%, … It was definitely David Miller was there I am
100% on that but then I think there was five of us actually went into the
house”.
[430] He then
asserted that he was not 100% on” the last guy “adding “I think it could have
been John Bond, it definitely wasn’t Mark Haddock”. Accordingly he was now indicating contrary to
his scoping interview in September 2008 that Haddock definitely had not gone
into the house.
[431] Similarly
at that stage he was not sure if it had been Bond whereas now before me he positively
asserted that it was Bond who had gone into the house even suggesting evidence
that it was Bond who had tried to put cable ties on Mr X with Miller
(notwithstanding his assertion in an interview of 21 April 2010 that it was his
brother and Miller who had done this).
His explanation for this was “I had myself in a room for eight weeks
trying to recollect everything with everybody that was involved … There was lots of time where I wasn’t exactly
sure who was there on particular points.
It took me time over time to think about these things cos I don’t want
to put somebody in something that wasn’t there”.
[432] The
plausibility of that explanation diminished when it emerged during the course
of police interviews with Ian Stewart eg in his interview of 20 October 2008
that he also quite wrongly cast Haddock in the role of going into the house, taking
part in the beating of Mr X with a claw hammer and carrying the man down with others to the car –
all of which allegations he now readily admits did not happen. He apparently
still believed that Haddock had knocked on the door and been in the house
carrying out this act during interviews in October 2008 and 17 February
2009 to the extent that he told the police he was now 100% sure on
19 February 2009 that Haddock had struck the man. He has Haddock being
involved in carrying Mr X out of the house.
(In the same interview he put Bond and Thompson in the house even though
he now accepts this was in error also).
[433] It
seemed an extraordinary coincidence that Robert Stewart admitted making the
same mistake about Haddock. Was it
another example of putting Haddock at some stage into every crime? Was it evidence
of collusive fabrication between the two of them at some stage to implicate Haddock?
Was it simply a coincidental mistake made by two men having precisely the same
lapse of memory? I was left with a nagging doubt that the coincidence was just
too great to be acceptable. I pause to
observe at this stage that it was a recurring feature of the Stewarts’
revelations in both the Mr X and English incidents that Haddock was given
either a false or a grossly embellished role on many occasions. Perhaps more than any of the other accused he
was the subject of exaggerated recollection.
It may well be that Haddock was the leader of this murderous gang and
was usually present, or if not present, was lending his imprimatur to most
crimes that they carried out. My task
however was to be sure that he was present on these occasions now before me in the indictment playing the role
ascribed to him in order to meet the legal requirements of the crimes
charged. Invention and embellishment
served only to create mounting impediments to such a conclusion.
[434] For that
matter how was it that Ian at this stage put Bond in the house exactly as did
his brother notwithstanding resiling from that now and accepting Bond, like
Haddock, was never in the house?
[435] Not only having put Bond and Haddock in the
house in Mount Vernon, which he now accepts was wrong, in his interview of 19
February 2009 Ian Stewart also put
Thompson in the house which he now also
accepts was wrong. I had to ask myself was this another instance
where Ian Stewart was simply naming all the “usual suspects”? Alternatively was
he getting totally confused with some other incident?
[436] A
further flaw emerged when in the course of the interview of 17 February 2009 he
claimed that four men had carried Mr X out of the house in Mount Vernon namely
Haddock, Bond, Wood and Miller whereas his evidence before me that it was
himself and Miller. Once again Haddock and Bond were being given roles which
they clearly did not play.
[437] Ian
Stewart clearly did not hesitate to embellish his accounts of Haddock’s alleged
involvement. I had no difficulty at all accepting Ian mistakenly or otherwise
asserting at one time that Haddock had said they were going to give Mr X “a
lacing” or “going to knock his bollocks off” —this is the common vernacular of
such earthy men and he would readily assume without a hint of necessary
dishonesty that this or something very like it was said. That does not explain
his assertion in the interview of 20 April that “he must have changed his mind
because before he came in he had been talking about killing him “and again
later in that interview he declared that the intention” had been to kill him”.
[438] He
accepted in evidence before me that Haddock never said that he intended to kill
him and indeed did not say that he was going to give him a good lacing. His explanation of this was simply he had
made an error. Why did he embellish this material in the course of interviews?
On its own it may be of no particular moment set in the context of men who
probably regularly invest their exchanges with violent imagery but seen as part
of a pattern of embellishment with one particular man it begins to take on a
different hue. How could I be sure that
Haddock had said “try to miss the kids” or for that matter that Bond allegedly
said “good luck lads” when the Stewarts
described Miller, Bond and Haddock leaving at around 4.00pm.
[439] Similarly
whilst normally the omission of a victim under stress to remember what has been
said is rarely significant, it took on a somewhat different hue when Mr X made no reference to the alleged phrase
by Haddock that he had threatened “to cut off his dick and balls” which one
would have expected the victim to
remember vividly if it had been said. Was this yet another invention by
Stewart?
[440] Of
perhaps lesser significance in this matter on its face – other than to indicate
the vagaries of memory in an incident of such vintage— but more concerning in
the general context of evidential chaos in the overall narrative of this event were
the number of differing descriptions given by Robert Stewart and his brother Ian
Stewart in their statements concerning the early stages of the incident.
[441] Robert
Stewart described the car being parked
near to a laneway close to John Bond’s house where there were about ten people
standing in the laneway including Mark Haddock.
Haddock told them what to do and how to do it. He made no mention about being in Bond’s
house. In contrast his brother said they
all went into Bond’s house where Haddock informed them what to do. Ian
Stewart’s account of whether they went
to the house of Bond (which he now asserts) or to that of Haddock varied considerably. Having said in the interview in 2008 that
they had gone to Bond’s house, in interviews of 17 February 2009 and 19
February 2009 he told the police it was Haddock’s house asserting that he was
definite about this and had been to Haddock’s house several times. As late as 20 April 2010 he was asserting
that it was Haddock’s house. However in
the interview of April 2010 he was now saying “It was either Bond or Haddock’s
house, they are very close”. The evident confusion grows when one adds to this
that Robert said that all the people who eventually went to Bond’s house met in
a laneway outside the house where weapons were handed out. Ian Stewart’s version was that they went
straight to the house.
[442] Robert Stewart’s
answer to this was that this all occurred thirteen years ago and he possibly
had a different recollection from that of his brother during these first few minutes.
I repeat that I have little difficulty accepting that memories can take time to
repair but I was still left with a nagging fear that the differences in the
roles being ascribed to different individuals by the Stewarts were such that at
least one of them was mixing this incident up with some other.
[443] A thread of uncertainty wove its way through
the account of Thompson’s presence in this affair. Mistakes about an individual by themselves are
entirely understandable but when the weight of confusion gathers appearing at
virtually every aspect, understanding converts into doubt. The concerns about
Thompson were as follows:
·
Was he there at
the initial meeting? Robert Stewart
asserted that he, Ian and Thompson had been walking together when a car had
pulled up with Alex Wood in it sitting in the front passenger seat adding “I
can’t be sure who the driver was, possibly Reggie Miller”. His brother Ian Stewart described this part
of the incident with Alex Wood and Mark Thompson being in the car and John Bond
was driving. Robert Stewart claimed
that he still was not sure if Miller was in the car but he thought it was possible.
·
Did he go into
the Mr X’s house? Did he remain sitting
in the car of the victim? Robert Stewart was certain that Thompson had never
come into the house and was always in the car.
Sonya Miller’s evidence in her statement of 13 May 1996 was that after
five men had dragged Mr X into the back garden and pulled him over the garden
fences, one of the males from “inside the house went out”, took MrX’s car and drove
it down
·
Not only having
put Bond and Haddock in the house in
·
In his evidence
before me Robert Stewart indicated that in the second car four people were in the
back namely himself, Wood, his brother and Thompson. John Bond and another man
were in the front. However in his
interview of 18 October 2008 when describing the second car, he claimed that
there were only three people in the back (not four as he subsequently said) and
he was unsure about Bond being in the front saying “I think John Bond might
have been in the passenger seat beside this fellow … I would give that a 50%
you know what I mean. It’s just
something in my head ringing a bell.” In
any event he did not mention Thompson being in the car. In his interview of 20 November 2008,
when asked who had entered the second car, he said “The three of us got in ..
me, Alex Wood, Ian, I think Mark Thompson might have got in then, I am not 100%
sure .. I think he might have got in”.
In his written statement of 21 April 2010 he again described himself,
his brother and Wood getting into the back of the second car with the victim at
their feet adding “I think Mark Thompson also got into the back with us and
John Bond was in the passenger seat”. This obviously contrasts with the
firmness of the statement he made in court about Thompson’s presence. He
accounted for his earlier uncertainty due to the pressure he was under during
the course of the interviews.
·
·
My concerns about
Thompson’s presence grew when Ian Stewart, not having mentioned Thompson in his
examination in chief (and indeed his first cross-examination) as being involved
in bringing the victim into the house in Larne, changed his story in later
cross examination and placed him as one of those involved in this aspect.
·
Similar confusion
reigned in the course of interviews and his evidence about whether or not
Thompson had been in the flat in Larne.
[444] Ian
Stewart was clearly confused about the drivers of the two alleged vehicles that
set off for Larne. He claimed before me that Haddock, Miller and
[445] Finally there was also a clear contradiction
between Robert Stewart’s suggestion that he thought Miller had left the scene
at Mount Vernon whereas Ian Stewart’s evidence was that Miller was present in
Larne in another room in the flat.
[446] Time can
of course alter such recollections even in honest men but given the large
number of crimes in which these men had been involved and the sheer degree of
confusion in this Mr X narrative I had to ask myself whether this degree of
error had sprung from a confusion of different crimes. Were they, perhaps unwittingly, mixing up at
least parts of this crime up with some other similar event particularly since
the crime was now of many years vintage?
Was this not the classic instance where it was possible that at least
one of the accused could have been inserted through genuine error as appears to
have been the case in Webster’s incident with Bond?
In the
English incident
[447] I have
already adverted to Robert falsely claiming that Haddock invited participants
in the murder but he and his brother
asserted they were definitely not
going to do it whereupon Haddock said
“You have to do fucking something”. Ian Stewart also falsely alleged in his
interview of 10 September 2008 that he and his brother had said they were not
going to shoot anybody and Laffin and Agnew had said they were not up to it
either.
[448] The
sledgehammer and the white spirit were sources of chaotic confusion It was Robert Stewart’s case in evidence
before me that he thought Bond and Reggie Miller had left the flat some time
after 4pm to get the sledgehammer and the white spirit after Moore, Haddock and
Robert Stewart returned from the reconnaissance trip to the English house.
[449] However he
was not always so sure of this sequence or the personnel involved. In the course of an interview of November 2008
during the debriefing sequence of interviews, he indicated to the police that
there was a possibility that it might have been him who had gone to get the
white spirit.
[450] Robert
Stewart’s implication of Miller in this part of the narrative varied wildly. In
interviews of the 5 August 2008, 16 October 2008, 10 November 2008 he made no
reference to Miller being involved with the white spirit or sledgehammer. His subsequent invocation of Miller was in
answer to a direct question from police mentioning his name. Stewart’s excuse
for this was that he had been in a one roomed flat during this debriefing
period and he had been starting to “doubt himself”. I find this somewhat
difficult to square with the length of time over which he made this omission.
[451] Ian
Stewart’s account of the participants in the production of the white spirit and
sledgehammer was equally confusing. Coincidentally with his brother he made no
reference to Miller’s involvement in interviews of 5 August 2008 (claiming Bond
alone was the culprit), on 10 September 2008 he asserted it was him who had
been told to get it and later that his brother and Darren Moore who had been
told to do so. He then went on to claim
again that it was Bond who returned with the sledgehammer. It was not until the
interview of 15 October 2008 (“I think Miller went with him”) that he
introduced Miller into this scenario although leaving him out again in his
interview of 16 October 2008.
[452] The
coincidence of error that beset this case persisted here also in that Robert had
made allegedly a similar mistake having initially said it was Bond who fetched
the spirit and sledgehammer but later changed this to Bond and Miller.
[453] The
white spirit continued to provide more bewildering confusion. Robert Stewart
said that it was he who carried the white spirit to the scene of the hijacking
and left it at the side of the flats for Agnew to collect. After the hijacking allegedly Agnew told him
that the white spirit was missing.
[454] In
contrast Ian asserted Agnew had left the flat earlier in the day to bring it up
to the scene. There was no question of
it accompanying the hijackers or his brother leaving it outside the flats where
the kidnapping occurred.
[455] As
earlier indicated I perfectly well understood how both witnesses could forget
some details of how the white spirit had been taken to the scene of the
hijacking. However it was the startlingly contrast between their purported
recollection that introduced the concern that at least one of them was
manufacturing a false memory or they
were confusing this incident with some other.
[456] Turning
again to the coincidence of error that
emerged as a feature in this case, it is easy to understand either of these
witnesses leaving out detail when
recalling a multifaceted event which occurred 8 years before. My concern
however has sprung however from the coincidence of omission by the two of them
in these early months particularly when there was a pattern of coincidental
omission and bilateral rectification at
a later date.
[457] Particularly in Miller’s case (and for that matter Bond) this was not a matter of mere minor variations of role. As I have indicated in paragraphs [46] and [47] of this judgment, the liability of secondary parties can crucially depend on what precise role they have played. Mere presence at a scene is not enough to convict.
[458] This
issue of Miller’s role again raises its head in the matter of the guns in the
flat. Ian Stewart initially in his
interview of 6 August 2008 said Haddock “would have “brought the guns up from
[459] This
changed in 10September 2008 to him saying it would have been Bond, Bowe, Miller
and Haddock who would have brought the guns in adding bizarrely in light of his
later evidence, that he did not remember Haddock handling the weapons. He also
at one stage in this interview said the weapons had been brought by “Alex” i.e.
Wood.
[460] However,
crucially in interview of 15 October 2008, and 17 October 2008 (adding “that I
remember” in each of these interviews) and again in evidence before me, he
graphically described the guns and ammunition being produced in the flat by
Miller and Haddock. Haddock allegedly
took the shotgun and ammunition out from the inside of his jacket and Miller
produced the handgun and some ammunition from his jacket.
[461] As I
have said on a number of occasions I have no difficulty with witnesses
forgetting details of events but I am bound to say that it puzzled me as to how
this crucially important scene --- the production of the weapons that were used
in the murder at a moment when the Stewarts claimed ignorance of what was going
to happen -- could have been overlooked and indeed even distorted until 15 October 2008. This is one
of the occurrences that I would have thought would have been indelibly
imprinted on their minds.
[462] My
concern as to the credibility of Ian Stewart on this matter grew in light of
Robert Stewart’s complete failure to remember anything even vaguely resembling
this. Not only did he tell interviewers
that the only reason he thought a shotgun was there was because his brother had
told him it was there (although in cross-examination before me asserting he
could remember it), but he evinced uncertainties about the presence of Miller
at material times in the flat before the murder throughout the interviews of
August 2008 and also the debriefing process which occurred in October and
November 2008. At times his concept of any role played by Miller was so vague
as to make me question if he had any clear idea whether he had participated at
all. Some illustrations will suffice:
·
In the course of
an interview of 16 October 2008 Stewart was questioned by police about
events in the flat on the day of the murder and how it came about that English
was chosen as the victim. The following
exchange occurred between the interviewing detective and himself:
“Stewart - … So from about 3.00 on it was
decided. It just seemed mad, during the
day you would have got maybe David Miller coming in and John Bond, John Bond’s
nickname was Bonzo. …. David Miller wasn’t really much to do with
anything just coming in and out, he was Haddock’s second in command. The next thing to happen was John Bond got
sent for a sledge hammer for the back door of Tommy English’s house in case it
was locked.”
·
Later in that
interview he again referred to the sledge hammer but merely referred to Bond
coming with the sledge hammer. In the
course of that exchange with the detective interviewing him he said:
“As I have said John Bond come in, I don’t know if he
was in and out a few times or not, Reggie Miller he was in and out but they
weren’t actually part of this whole murder you know what I mean.”
·
In an early interview of 11 November 2008 commencing at
10.52 the following exchange occurred between the interviewing detective and
Robert Stewart:
“Detective – What about Reggie Miller tell me about
his input into the plan.
Stewart – He was just in and out as I say I think he
maybe got the phone call and, but he, his, him involved in the planning, what
their tactics and what Haddock or something wanted him to do, as I say Reggie
wasn’t a bright spark either………………...
Detective – As far as you remember did David Reggie
Miller have any input into the plan at all.
Stewart – He could have had input know what I mean
with Mark Haddock in the plan but I don’t remember anything.
Detective – You can’t specifically remember anything.
Stewart – No.
He was there, he was in and out you know what I mean and they were
looking to get a hair bear they were saying so.”
·
In a later interview
of 11 November 2008 the following exchanges occurred between the investigating
detective and Stewart:
“Stewart – And I don’t know Reggie and Bonzo being
there what their actual point of being there was really either.
Detective – They’re Shore Road UVF men.
Stewart – Aye.
It’s possible they just could have just come up, come up with Haddock
and they got the phone call and then that doesn’t, they could have been in you
know there at the time, that doesn’t mean necessarily that he would have
involved them in the murder know what I mean.”
[463] I was
left bewildered as to how Robert could have consistently believed over a period
of months in interviews with police the peripheral role of Miller therein
described if in front of him in the flat Miller had produced from his jacket
ammunition and a weapon which were used in the murder, had been party to
obtaining the white spirit and sledgehammer and had been part of the planning
and had left with Bond and Haddock at 4pm when final instructions had been
given. How could he possibly have forgotten such pivotal moments, especially
the production of the gun throughout all the interviews right up to this trial?
[464] The role
of Wood, like that of Haddock, Miller and Moore, was another example of troubling
inaccuracy and manifest embellishment on more than one occasion.
[465] If, as I
accept, he had been identified at a police VCP at 1.50pm at Lowood Park Mount
Vernon the timings of him being at the
steps at 1.30pm,the flat 1.45 -2pm etc are clearly wrong.
[466] Ian
Stewart accepts that he was wrong to assert that Wood ordered him and his
brother to burn the clothes. Why did he make this up about Wood?
[467] At one
stage Ian claimed Wood brought in the weapons although retracted this later?
Again why Wood was again wrongly implicated?
[468] Robert
Stewart has Wood handing him the white spirit whereas Ian claims it was Agnew
who took the white spirit.
[469] In an
interview of 10 November 2008 he did not know who handed him the replica gun
but subsequently he recalled it was Wood.
[470] Ian
Stewart initially left Wood out of the allegation re who had brought the balaclavas
into the flat but added him in later.
[471] Their
description of the roles played in the hijacking were chaotic. It is of course
very easy to get mixed up over a period of time about such matters but some of
the errors were so fundamental as to cause me greater concerns than others. Before me Robert Stewart was clear
that when the taxi arrived at Ballycraigy flats Higgins and Ian Stewart took
the driver from the taxi and brought him to the door of the flats where Robert
was waiting. Extraordinarily in the interview of 12 November 2008 he thought
that when the taxi pulled up Laffin went out and “maybe got in”. He added “I think I went in behind him and
got in but I am not 100% sure. It’s
possible somebody else could have went and got the taxi driver out of the taxi
but I am not 100% sure. I think it was
me. It was definitely me and Ian held
him”.
[472] Indeed
such was his confusion that Robert at one stage told interviewing officers that
Agnew’s role was so peripheral that he would not even have been seen by the
taxi driver and essentially his role was confined to that of burning the taxi.
However his final version has Agnew coming to him when he and Ian are holding
the taxi man and explaining about the missing spirit.
[473] On 2
June 2009 during interview, when the police attempt to clarify some matters, he
now asserted that he stood near the door of the flats whilst Agnew and Ian went
to the taxi and brought the driver up to him.
Of course even this account contradicts the taxi driver who asserts the
miscreants got into his vehicle before taking him out.
[474] His
answer to these differences is that he had become slightly confused as to the
roles because he had been in the room for a lot of weeks, was getting asked
lots of questions and became confused.
Such was the inconsistency I was driven to conclude that he may have
been confusing this incident with some other incident where similar facts had
occurred.
[475] Ian Stewart’s evidence on this incident is similarly flawed and confused. At the scene he asserted his brother and Agnew approached the vehicle with him holding back. In stark contradiction to the taxi driver he asserts no one got into the taxi. In contrast to his brother he denies it was him who held back. He further denies any conversation with Agnew about the missing white spirit whilst the taxi driver is being held even though he must have been there if it occurred.
[476] He asserted that other than Agnew leaving to hide the white spirit (in contradiction to his brother’s assertion it was he who had it ) neither Laffin nor Agnew left the flat from their arrival notwithstanding the clear independent evidence of them being seen at a VCP at Lowood Gardens at 1.50pm by police officer Heather Robinson.
[477] The wearing of the balaclavas by the killers was also a topic of scrutiny by counsel. I fully understood how over the passage of time the Stewarts might have forgotten or become confused as to the details of how the balaclavas were produced, even to the extent of who produced them. More difficult however was my understanding of how imagined roles with reference to the balaclavas were introduced. How did Ian Stewart come to assert that he saw them being worn by Wood, Loughlin, Bowe and Moore when he had on his own evidence left to do the hijacking some time before they left to carry out the murder? Why would they have worn balaclavas before they even left on the journey? He could provide no explanation for this fictional image he had conjured up. Even more curious was the evidence of Doreen English that not only was the man with the shotgun (alleged to be Bowe by both Stewarts) dressed entirely differently from the clothes described by Ian Stewart that Bowe had on, but she said none of the miscreants who entered her house were wearing balaclavas. She of course could be entirely wrong given the stressful event but she was within feet of the miscreants for quite a while and it is difficult to envisage how the wearing of balaclavas would not have been etched on her mind .Were these but more examples of complete confusion on the part of the Stewarts –especially Ian –in recalling this event despite their purported certainty? Was he adding details which he was fabricating in the absence of a clear memory in order again to lend an air of verisimilitude to the whole affair?
[478] Into this category I also must add the allegation of Robert Stewart that Bowe had claimed shortly before leaving to carry out the murder that he wished to speed up the matter so he could eat a kebab. He unequivocally asserted to Ms McDermott in cross-examination that he had heard this said by Bowe and indeed claimed that he remembered feeling “sick as a pig” when he heard it. This of course completely contradicted his assertions to the police in interviews of 12 November 2008 that he was told this by his brother and had not heard it himself. Was this another detail that he was manufacturing? While a small matter it nonetheless illustrated to me the random nature of his evidence on important matters.
[479] Perhaps
one of the most vivid and compelling coincidences of error occurred when both
Robert and Ian Stewart omitted to include Moore as taking part in the
reconnaissance of
[480] In any
event on 2 June 2009, almost ten months after first discussing this incident,
during the course of a further interview which had been arranged after he had
requested to meet the police again he informed the police of three matters that
he had allegedly forgotten. One of them
was the incident involving the reconnaissance.
The interview records as follows:
“Stewart – I went out with Haddock for about 5 minutes
to go down and look at the house …
[481] Stewart
then went on to describe the model of the car and how he how he now recalled
[482] As
[483] It was a troubling coincidence that Ian Stewart had an identical lapse of memory about Moore and a later recollection about Moore being in this car in his early interviews.
[484] Since
Ian had not been in the car his omission might have been slightly less
concerning. However the remarkable
coincidence of oversight and recollection for
precisely the same reason namely that
[485] This concern gathered momentum when as I have already indicated in paragraph [404] et seq Moore was the subject of a number of concerning mistakes to which I shall now turn in somewhat more detail.
[486] Robert Stewart consistently claimed that Philip Laffin telephoned the taxi pointing out to police the telephone box where the call was made by Laffin after they had left the flat albeit he said in evidence he is unsure if he actually saw Laffin make the call.
[487] Ian said in evidence that it was Darren Moore who made the telephone call for the taxi and that he did so “from outside the estate” leaving the flat to do so and returning around 15 minutes later at about 4.30pm. This had allegedly been agreed between himself and Woods.
[488] Sylvia Louise Downey's unchallenged evidence, in a statement the day after the incident, was that she received the call for the taxi at 5.50pm exactly.
[489] Errors about time or even different recollections about incidents over the years are not necessarily concerning albeit the Robert version would seem more logical ie it would be one of the hijackers who would telephone the victim shortly before arriving at the scene.
[490] Much more concerning however was the fact
that in an interview of 5 August 2008
Ian Stewart told police that it was Philip Laffin who had gone to make the
phone call for the taxi. In an interview of 6 August 2008 he claimed that Phil
Laffin had made the call as far as he could remember when they (the group of
four) had left the flat to go and hijack the taxi thus mirroring what Robert
said.
[491] His account only started to vary somewhat on
the 10 September 2008 when he said Philip Laffin was told to go down to the telephone box at New Mossley at
about 5.45pm repeating this in an interview of 15 October 2008.
[492] Ian
Stewart first mentioned Moore as the caller of the taxi on 17 October 2008
claiming that he had made the call from Old Mossley shops i.e. he had gone out
of the estate to do this about 4.30pm. He asserted this recollection had “just
popped into his head” the previous evening.
[493] How did it come about that the two Stewarts had
agreed on Laffin as the caller in the early stages if, as now asserted by Ian
Stewart, it was
[494] This pattern of Ian Stewart belatedly
involving
[495] When dealing with the replica in his
interviews on 5 August 2008 Ian Stewart blames Haddock for producing the
replica (and hands it to Wood) and repeats this in an interview of 10 September
2008. He only implicates
[496] I therefore harboured the nagging fear that
[497] Finally,
I understood perfectly these witnesses forgetting precise times over the years.
Indeed generally the investment by counsel in eliciting such disparities paid
little dividend. However on occasions
the disparity was so startling that even the passing of years could not avail.
A good instance was Robert Stewart relating to me in great detail how
[498] Hence
my concern when it emerged that in an interview with police on 5 August 2008 he told them that “there was no actual
official target“ until maybe 5 or 5.30pm. Whatever the explanation about the
effect of drugs and nervousness on his memory— to which I was at times
sympathetic –I was bewildered as to how he could have forgotten at this
interview the entire planning to murder
The Caskey
incident
[499] In an
interview of October 2009 concerning the Caskey incident Robert Stewart
betrayed a readiness to assume events that happened – a readiness revealed
again in his evidence before me – which once again undermined my confidence in
his real recollection of what had happened.
The following exchange occurred between him and police on the issue of
what occurred after Caskey had been questioned in the flat and before the
beating took place:
“Police – So after questioning in the flat, you guys
are getting gathered up, yourself, Wood and Loughlin with weapons and with
balaclavas and gloves.
Stewart – As soon as Haddock had left with them to
drive him round. He drove down
Police – And Haddock, Haddock’s in the car with Darren
Moore and Reggie Miller.
Stewart – Yea.”
[500] It
emerged in evidence before me that this was entirely assumption on his part
since he had not seen the car, anyone in the car or any route that they may have
taken. My fear was that this was another
instance where consciously perhaps Stewart was introducing into his hazy
recollection of these incidents norms of behaviour which had occurred on other
occasions. Describing in detail the
route, however logical that route may have been, that he had not observed being
used again gave me cause for concern as to the reliability of his recollection
of this incident particularly since it seemed extraordinary that this lengthy
car drive would have occurred when the victim could simply have been walked a
matter of yards to the scene of the beating.
Sadly it was an example of his loose thought process where I was
concerned that he was prepared to sacrifice accuracy and truth to assumption
and imagination.
[501] I can
understand that over the passage of time roles performed or words actually
spoken may be temporarily forgotten or even misattributed to other people
especially where the participants have not been central to the overall text.
[502] What I
cannot understand is where roles which have never occurred and words which have
never been spoken are introduced and key events are overlooked for lengthy
periods. That this should happen
regularly in circumstances where both narrators at times introduce the same
imagined event or overlook the same sequence smacks of coordinated fabrication
or collusion to which matters I shall shortly turn.
[503] Equally
concerning were those instances where complete confusion reigns or where one
party describes a vivid and compelling event and the other has not the
slightest recollection of this occurring.
This bears the hallmarks of unacceptable confusion with other crimes or
pure invention on the part of at least one of them.
[504] This
created yet another area where the credibility of these witnesses overall
became potentially fatally flawed.
Evidence of
collusion
[505] The need
to ensure that that evidence remains the witnesses’ own uncontaminated evidence
was particularly important in this case where I was searching for independent supportive evidence (see R
v. Momodu (Practice Note 2005) 1 WLR 3442 at paragraph 61 and 62 as set out
by me in paragraph 62 of this judgment.
[506] It is
clear from the evidence that the Stewarts were in the presence of each other
between various interviews. I am sure
that they discussed their experiences of interviews during those periods. The
agreement to belatedly suggest the involvement of Hinds and McCrum and the
joint belated involvement of
[507] I found wholly unsatisfactory the suggestion
by the two witnesses that they had difficulties remembering discussions between
themselves about their various joint involvements in all these matters although
in the interviews and before me both agreed that it had probably occurred e.g.
the scoping interviews commenced on or about 10 September 2008. The debriefing started around 15/16 October
2008. The police had suggested to Robert
Stewart that he should write down the offences in which he had been involved. He said that before they went into the
scoping interviews in September 2008, there were occasions when he was making
notes with his brother about different offences.
[508] It was
clear from the interviews and from their evidence that they had discussed these
matters both before and after their arrival in Antrim Police station (see
paragraph 320 of this judgment). I therefore consider there was a real risk of contamination
of evidence and collusion in this whole matter which fatally flawed any
suggestion that they could provide independent
support for each other in any assessment of their evidence.
[509] Illustrations
of this danger abound.
The English
incident
·
Leaving out Hinds
and McCrum when they first went to police
and later jointly deciding to insert them.
·
Jointly alleging
that Haddock had demanded that they play a role and that the four hijackers had
indicated unwillingness at the initial stages to carry out the murder to
Haddock. It seemed to me inherently
unlikely that both brothers had made an identical mistake absent some measure
of joint agreement/collusion to say this before going to police.
·
Both parties
leave
·
Both witnesses
initially have no recollection of anyone wearing a Liverpool scarf at the
hijacking but then both subsequently remembering it was Ian wearing it.
·
Both at one stage
declared the replica gun was left under a flowerpot in Hinds house although Ian
in evidence before me stoutly asserts this never happened.
·
Both claimed to
have distanced themselves from the UVF after the murder although their
subsequent crimes show this to be untrue.
·
Both claimed they
had failed to come to the police because they lacked trust in the police
because of the relationship the police allegedly had with Haddock.
·
Both claim to
have forgotten they initially pleaded that they believed they were to be killed.
·
Both claim to
have forgotten the initial meetings with the HET re SOCPA and both deny any
discussion of the possibility of sentence reduction.
[510] In the Mr X incident
·
It seemed an
extraordinary coincidence that both Robert Stewart and Ian Stewart admitted
making the same mistake about Haddock being involved in going into the house
and attacking Mr X.
·
Similarly both
put Bond in the house at one stage or another notwithstanding resiling from
that now and accepting that Bond, like Haddock, was never in the house?
In the Webster
incident
[511] A
fundamental problem with the prosecution evidence on the Webster incident was
that throughout the police interviews and in their evidence Robert Stewart and
Ian Stewart jointly put Bond as one of
the 5 people who drew up in the car and participated in the assault notwithstanding
the evidence before me suggesting he was in prison. It seemed on the face of it
a remarkable coincidence that they both made the same assertion and smacked of
collusion.
[512] It is
clear that the alleged attack on Michael Webster---which appears not to have
happened in light of the absence of injury to him and the evidence of
a police officer at the scene ---- is yet another example of where the joint
assertion must have been the product of collusive discussion.
[513] The
consequences of these facts are that I could not be satisfied that their
evidence is sufficiently independent or free from the risk of contagion to
permit me to use one Stewart as supportive of the other. Of equal importance it
also left with me a deep concern that there was at least the possibility that
they had jointly fabricated parts of the narrative in all these offences.
Contradictions
with the evidence of victims and police
[514] Throughout the trial counsel drew attention to the inconsistencies between accounts of the two Stewarts and those of the victims, witnesses close to the victims and police. I had no difficulty recognising that victims are as likely to be subject to the frailties of memory as anyone else especially since they are invariably in a fraught and traumatic position where experience reveals that even vivid memories can be distorted. The status of victim sadly bestows no premium on accuracy in any individual case. What concerned me in this case however was the sheer volume of inconsistency between the evidence of the various victims and the evidence of the Stewarts leading me to question yet again the reliability of the Stewart recollections bearing in mind the burden of proof on the prosecution. I was conscious of Lord Lowry’s admonition in Graham’s case that independent evidence which contradicts a Crown witness, even on an irrelevant point, has in fact more probative value against the Crown than evidence which supports the witness could have in favour of the Crown. Thus inconsistencies between accomplice evidence and independent evidence are a very important factor even on seemingly irrelevant points. Some instances will suffice:
[515] In Mr X’s case I am bound to observe that there are some highly significant
differences between the account given by Ian Stewart of this event and that
depicted by the victim and witnesses.
Some illustrations will suffice:
·
Mr X the victim, WJX, his son who was present and the niece of Mr X all recorded that it was WJX who opened the
door to the miscreants and not a woman as described by Ian Stewart.
·
All three such
witnesses described a number of masked men entering whereas Ian Stewart
declared there was only one.
·
Mr X asserted
that a hood had been placed over his head whereas Ian Stewart denies this.
·
Mr X contended
that he was placed face down in a four door vehicle with three people sitting
with their feet on him whereas Ian Stewart declares that there were four people
in the back seat.
·
Ian Stewart
recalled that Wood had been stamping on him in time with a song “Gangster
Paradise” whilst in the car whereas Mr X declares he was not punched or
assaulted on the journey.
·
Mr X asserted
that he had been driven for 20 minutes in one car and then dragged into another
car whereas Ian Stewart declared there was only one car to transport him to
Larne. There was however independent
unchallenged evidence that Mr X’s car was found behind a row of garages and
inside there was forensic evidence of his blood on the back foot well and rear of
the front seats. This obviously wholly
supported Mr X’s account and destroyed Ian Stewart’s assertion that no such
change of car had occurred. Even if I
accept Ian’s professed certainty on this issue, it is so clearly wrong that I
fear it may be yet another indication that he is confusing this incident with
some other event where a victim was abducted in one car only.
·
Mr X made no
reference to the alleged phrase by Haddock that he had threatened “to cut off
his dick and balls” which one would have expected Mr X to remember if it had
been said.
·
Mr X asserted
that he had been burnt with cigarettes whereas Ian Stewart asserted this had
not occurred.
·
Ian Stewart
insisted that the man had been unconscious whereas this was clearly not the
case of Mr X.
·
Reference was
made by WJX and Mr X’s niece to the presence of a three year old child in the
house during the attack whereas Ian Stewart has no recollection of this.
·
WJX claims that a
gun was put to his head when a man burst into the house whereas Ian Stewart
denies there was any gun.
·
WJX makes no
allegation that his fingers were forcibly broken by Wood or Ian Stewart despite
the assertion by Ian Stewart that this happened. The independent medical evidence on the injuries to WJX provides no hint of fractured fingers
although it does back up WJX’s assertion that an attempt was made to break his
left arm by someone jumping on it in so
far as there was medical evidence of a fractured radius.
·
Ian Stewart
denies that WJX was beaten whereas WJX declares not only was he beaten but a
medical report from Dr Hagan on WJX recorded injuries after an alleged assault
with baseball bats.
·
SM declared that
one male out of the miscreants went out the front door and drove Mr X’s car
down to
·
SM makes no
allegation of being hit with a baseball as asserted by Ian Stewart.
·
There was no
evidence before me that, as alleged by the Stewarts, the police raided the flat
and arrested members of the Larne UVF
notwithstanding the assertion of Ian Stewart that he heard the sirens of
police vehicles as he left.
[516] The
Webster case presented fewer illustrations because I have found the
Websters generally to be extremely unreliable (see my earlier judgment). Nonetheless
certain parts of their evidence did have independent support.
·
The primary
illustration was the suggestion that Michael Webster was beaten severely when
there is no such assertion by Webster to Constable Brown who saw him shortly after
the event, no evidence of hospital treatment of him before the court and of
course no charge was before the court of such an assault (charges relate only
to Alan Webster).
·
Ian Stewart’s
account of Alan Webster being hit repeatedly with a sledgehammer so that he
drove his legs into the muddy ground was not reconcilable with the medical
evidence on him before me.
·
Bond according to
prison records was in prison when the Webster incident occurred.
[517] In the English case equally significant
differences emerge:
·
Whilst Robert Stewart accepted that the police
VCP evidence established that Miller must have been at Mount Vernon at the
very least between 2.00pm and 2.15pm on the day of the murder with no record of
him leaving the estate again, Ian Stewart steadfastly refused to accept this
insisting the only time Miller was outside the group at the shops and flat was
when he left with Agnew for the spirit.
·
Ian Stewart was
inflexibly wedded to his timings as to the initial events on the day of the murder.
He has to be wrong about these. He
simply cannot have met Wood and Loughlin at 1.30pm at the steps, arrived at the
flat at 1.45-2pm with them and have seen
weapons produced within 15 minutes in their presence because Wood and Loughlin were
stopped by police at 1.50pm at Lowood Drive in Mount Vernon.
·
In the course of
a statement of 4 December 2008,
“I can say that I have known Miller whilst being a
member of the Ulster Volunteer Force.
Miller is also known by the nickname of Reggie. He is a white male, about 5 foot 10, and
speaks with a slight lisp or stutter.”
·
Stewart acknowledged that he would not have
signed that statement unless at that time he did remember Miller having a lisp
or a stutter. He had recognised his
voice as the man in the balaclava who had sworn him into the UVF in 1994. At that time he said he heard a voice and the
next time he heard that voice he realised it was Miller.
·
Robert belatedly
claimed to remember Haddock’s car being present at the car park at New Mossley
when they met at the shops in an interview of 2 June 2009 having previously
been uncertain how he had got to the estate in an interview of 5 November 2008.
However his newly acquired recollection was erroneous because there was
independent police evidence from D/C McCready of sightings of Haddock’s car
parked between 13.00 and 13.23 in
·
Ian Stewart
claimed in evidence before me that he witnessed Haddock handing over the keys
of his BMW in the flat to purchase the sledgehammer. This seems highly
implausible given the CCTV of the vehicle - namely a rover - which was present
at the store at the time of the purchase of the sledgehammer.
·
As indicated
above
·
[518] On an
individual basis most of these inconsistencies were explicable on account of
the understandable effect of the passage of time on memory. Taken cumulatively they served to undermine
yet further the credibility of these witnesses. They have an added importance in this case
because there is so little opportunity afforded to test the evidence of the
Stewarts against such independent facts.
The demeanour of Robert Stewart
[519] Credibility must be considered in light of all the evidence including demeanour in the witness box. It was obvious to me that Robert Stewart clearly felt the pressure of giving evidence over the course of 26 days (indeed he was ill for several days and his evidence had to be interrupted for medical treatment to occur). Confronting the glaring eyes of those you are accusing whilst being subjected to the spiralling inquiry of counsel is never an easy task.
[520] Nonetheless whether through deliberate design or otherwise he exuded at times the swaggering arrogance of a hardened criminal unafraid to confront counsel with a mixture of truculence and aggression. Throughout the drifts and lurches of his evidence he regularly entered into combative exchanges with counsel greeting their probing questions with a sighing impatience frequently accusing them, quite unfairly in the main, of being obtuse unnecessarily repetitive and wasting time.
[521] I do not believe this man had the hunger for inner stillness that he claimed to seek. He never manifested the remorseful characteristics of the reformed character he claimed to be. Whilst the medication he was on throughout the trial may have served to mask some of his true feelings, I failed to discern on any single occasion a shred of compassion for or sense of empathy with the many victims on whom he had inflicted relentless misery despite his declarations of changed character.
[522] On the contrary, as I watched him carefully over the weeks he was before me, I was convinced that this was a man who was an adept exponent of the art of saying what he felt needed to be said without necessarily meaning a word of it. He was possessed of all the tools of the inveterate dissembler regularly invoking loss of memory, his medical and drug history, and the pressures of his plight as reasons for any weakness in his evidence. It was a clear strategy upon which he relied throughout the trial. When under attack he never hesitated to insert deliberately and often irrelevantly, prejudicial material against the accused.
[523] Whether parts of his evidence were perceived reality or fiction I know not. These two concepts are equally untrustworthy. Sadly however I concluded this was a man defined by his flaws and in whom I could repose little confidence that he would tell me the unvarnished truth when he deemed it not in his interests to do so.
The
demeanour of Ian Stewart
[524] Whilst less aggressive and combative than his brother, Ian Stewart betrayed an inflexibility of thought and reaction that troubled me greatly. Faced with incontrovertible independent evidence that negated his assertions he still obstinately persisted with no tremor of change. His evidence was stocked with refusals to concede or even countenance error on his part in a manner that struck me at times as bordering on the bizarre. He seemed locked into the rigid grip of an account that he had elected to give.
[525] In this context I was mindful of Lord Lowry’s admonition in Gibney’s case that a man who has been granted immunity may fear (without foundation it may be) that the immunity will be withdrawn or that the full terms of his bargain would not be implemented if he does not swear up to his proof. Someone who has been sentenced may believe (possibly quite mistakenly) that his actual stay in or return to prison depends on the evidence he gives.
[526] Instances
of this type of behaviour included:
·
His denial of the
presence of Miller at the VCPs at
·
His insistence that
Bond had been at the shops prior to the visit to the flat in the face of a
wealth of unchallenged evidence from the prosecution that he must have been at
a funeral in Banbridge at this time.
·
His consistent
refusal to accept the assertion put to him by counsel that he had lied to
police about Hinds and McCrum in the early stages, only conceding that he had
made “a mistake”.
·
His failure to acknowledge
Bond was in prison at the time of the Webster incident despite the documentary
evidence before me.
·
His “100%” certainty
that Miller was in the photograph in the CCTV extracts at Hill’s Stores.
·
His refusal in
the Mr X case to accept that the forensic evidence proved unequivocally that
the victim had been in his own car with the miscreants
·
His invariable
insistence that he was relying on what he had signed in his written statements
to the police thus somehow relegating in his mind the importance of errors in
his interviews.
[527] This rigidity
of thought probably did not have its etymology
in his medical condition according to Dr Browne albeit there was evidence
before me that he was diagnosed by Dr Idahosa in July 2011 as suffering from a bipolar
affective disorder with grandiose delusions. In 2011 Marian Carr a cognitive
behavioural therapist had diagnosed him as suffering from an obsessive
compulsive disorder. It may simply reflect the unrealistic inflexibility that
often inhabits the criminal mind.
[528] Whatever
the cause of this mindset and whatever the varying strength or weakness of the many adjectives
which counsel expended on this feature of his evidence, I was deeply concerned
that he could be obsessively wedded to
erroneous detail where there was
no independent material to unmask it. It served to cast a shadow over his
entire evidence.
[529] As his
evidence unfolded I was unable to disassociate his profoundly dishonest past
from his performance in the witness box. He struck me as a man hovering around
the borders of dishonesty in most aspects of his life unhesitatingly misleading
nurses, doctors, employers, social security officials, interviewing police
officers and even his disabled parents whenever it suited his interests. The
ugly cutting truth is that dishonesty seems to be an immanent presence in his
day to day living. I have no doubt he lied to this court on occasions with the
same unflinching resolve that has governed his approach to his past life.
[530] These
character defects go some way to explain the reckless abandon with which he was
prepared to name people in crimes who were not there, to embellish and
exaggerate the roles of those who may have been there and to have
unhesitatingly lied when he felt it necessary.
[531] I
therefore concluded that his evidence had to be treated with the greatest
caution and reserve.
Verdicts on
the remaining counts
[532] I
recognise that some of the evidence of the Stewart brothers may well be true in
some or even large measure. However so flawed is much of their evidence that I
have not been able to exclude the real possibility that it was false in its
implication of one or more of the accused.
In summary these are dishonest witnesses of very bad character who have lied to the police and to the court, on
some occasions wrongly implicated a
number of men who were clearly not present at the crimes suggested, on other occasions at worst falsely embellished or at best wildly
confused the roles and words of those
whom they alleged were present, have clear difficulties distinguishing one crime
scene from another, have obviously colluded to produce certain parts of their
testimony and have given evidence which
is flatly contradicted by unchallenged independent evidence throughout the
process.
[533] Weighing
up all these factors I have come to the conclusion that the evidence of the
Stewart brothers, on which the core of the prosecution case rests, is so
unreliable on the English murder, the Mr X incident and UVF membership that any
supportive or additional evidence relied on by the prosecution evidence, is insufficient to
satisfy me beyond a reasonable doubt as to the guilt of any of the accused on
any of the remaining counts.
[534] The
supportive evidence relied on by the prosecution has fallen far short of
repairing these defects largely because the core prosecution evidence is too weak to gain sufficient
sustenance from it. In short none of the
supportive evidence which I shall now consider is compelling enough to remove
the reasonable doubt that I harbour about these accused.
[535] The
Stewarts are not sufficiently independent to have supported each other. The
evidence of collusion on their part instantly puts paid to such a possibility.
[536] Adverse inference from failure to give evidence cannot be used to bolster up a weak case. So unreliable is the evidence of the Stewarts on all the charges that I cannot conclude that the only sensible explanation for the accused failing to give evidence was that they had no answer to the case against them which could have stood up to cross-examination. Even had I invoked an adverse inference against them it would have been insufficient support for the other evidence to sustain a finding of guilt beyond reasonable doubt.
[537] In the
case of Haddock, there clearly is evidence of bad character illustrating a
propensity to engage in acts of violence by himself and along with others in
such organised attacks as that on the Golden Hind. However there is no evidence from these convictions that he was the UVF
commander or for that matter the organiser of the offences themselves. I must be wary of the danger of placing undue
reliance on these convictions in a case where I consider the primary Crown
evidence is weak because of the flawed nature of the Stewart evidence. I am not satisfied that this evident
propensity to commit acts of violence is sufficient to bolster up the profound
weaknesses in this case to the extent that it convinces me to the relevant
standard of the guilt of the accused.
[538] The
evidence of the association of many of the accused was again insufficient
evidence to bolster up the profound weaknesses in this case.
[539] As Lord
Lowry indicated in Donnelly’s case consistency in a description about
the circumstances of the events is not supportive evidence if, as I believe,
the Stewarts were involved in these crimes.
The danger is that they may have misidentified one or more of the
accused either deliberately or unconsciously notwithstanding the consistency in
relating the facts of the events themselves.
[540] I have
already adverted to the dangers of delay in this case in paragraph [48] of this
judgment. This is not only particularly manifest in the flawed recollections
about the Mr X incident and the UVF swearing in ceremonies but the interviews of these accused, especially in
2009, are very far removed in time from the date of the English murder and, if
they are innocent, may make the powers of recollection as to where they were or
what they were doing on that date somewhat unreliable.
[541] Two
illustrations will suffice. First,
Loughlin actually made the case that he had difficulty remembering the year
2000. Thus Loughlin’s failure to recall
in police interviews that he had been in
[542] Secondly,
Laffin denied knowing Wood and Agnew in interviews in 2009 despite being
observed by police in a car with them on the day of the murder. However the circumstances of them being in
car with Laffin are now too far removed because of the passage of time to allow
exploration of the matter. Was he there
merely getting a lift with one known person and two unknown persons? Has he forgotten that he knew them nine years
ago? Did he know Agnew was also known as
Higgins? These are doubts nourished by
the passage of time.
[543] Moreover
I must bear in mind that those such as Miller who have given an alibi for that
day may have difficulty because of the passage of time obtaining witnesses to
support them. Similarly I am
reluctant to visit upon Wood a finding of mendacity about his account of
returning to
[544] There is
no doubt that initially the implausibility of these witnesses coming to a
police station to invent an account about Haddock seemed compelling. However the strength of that point crumbled
considerably under the weight of doubt cast on the motivation of the Stewart
brothers for coming forward and the sheer unreliability of their assertions when
subjected to forensic scrutiny.
[545] The
prosecution were on somewhat stronger ground in adducing supportive evidence in
the case of Hinds and McCrum. On the
face of it, no benefit accrued to the Stewarts by implicating these two men. That
they had identified their houses correctly seemed likely to have obviated the
possibility of a Bond type misidentification.
[546] However
the Hinds and McCrum narrative from the Stewart brothers was peppered with lies
at various stages from the start to finish including:
·
Lying to the
police in the first instance on a number of occasions.
·
Collusive and
perhaps mendacious behaviour concerning the flowerpot incident.
·
Ian Stewart lying
when he purported to remember McCrum pointing out the area where the clothing
had been burned behind the church.
·
At least
seriously in error, and in my view likely lying, about Hinds coming to the
McCrum house to inform them that
·
The deeply implausible
aspects of their story as pointed in paragraph [306] of
this judgment.
[547] When I
coupled these matters with all the other frailties to which I have adverted, I
was compelled to entertain a nagging doubt that even in the case of Hinds and
McCrum I simply could not rely upon the credibility of these two witnesses.
[548] Dealing
with the charges of UVF membership, I was not satisfied as to the provenance or
reliability of the names and signatures found on the UVF plaque seized from
Bond’s house. I do not know who inserted
those names or who applied the alleged signatures. I did not find that evidence sufficiently
strong to bolster up the inherent weaknesses in the Stewart evidence. Similarly I did not find the fact that
Haddock had a UVF tattoo on his person in 2009 sufficient to justify
satisfaction beyond reasonable doubt on these counts relating to 1996-2000.
[549] Moore
wearing body armour on 7 November 2000 during a Loyalist feud was inadequate
supportive evidence for the Stewarts to convince me beyond a reasonable doubt
that he was a member of the UVF at that time.
For all I know his friendship and association with those who were in the
UVF had rendered him a target.
[550] The
evidence in the case of Bond provided potentially sterner supportive evidence
of UVF evidence for the prosecution in his case. His explanation to the police during
interviews that the items had simply been deposited at his house by a flute
band when they moved from the band hall association and that he was treasurer
of the band, pointing out that the band was associated with the UVF who fought
at the Somme, was a self-serving statement about which he has chosen not to
give evidence and therefore permits me to draw an adverse inference against
him.
[551] However
I had to bear in mind that the items in relation to Bond were seized from 76B
[552] Accordingly
the evidence before me on the English
murder, Mr X incident and UVF membership has had too weak and unreliable a
foundation based as it is primarily on
the flawed and unreliable Stewart testimony.
The supporting evidence falls far short of restoring the necessary
credibility to satisfy me beyond a reasonable doubt as to the guilt of any of
the accused on these charges. With the
exception of Pollock whom I have convicted on counts 7 and 8 I therefore
dismiss all the remaining charges against the accused.
Closing
remarks
[553]
This judgment should not be seen as,
and is not intended to be, a comment much less a criticism of the structure of
the SOCPA regime which accommodates the use of accomplice evidence. Parliament
has passed this legislation and it is for the courts to interpret and implement
it faithfully. Its purpose is to adopt the
pragmatic approach that without it major criminals who should be convicted and
sentenced for offences of the most egregious nature might, and in many cases, certainly
would escape justice. The incentive is to encourage cooperation by provision of
a reduced sentence. The common law, and now Parliament in this statute, has long
accepted that in
[554] Cases such as the present test adherence to
the rule of law to the utmost. One of
the primary obligations of a court is to unflinchingly protect the public
against violent criminals and visit condign punishment on those who offend.
However courts are the keepers of the rule of law and, borrowing a
phrase of an 18th century American judge, if it is to be more than a
mere rope of sand a court must never set aside the legal standards that lie at
its very heart. It must convict only
where guilt is proved beyond a reasonable doubt and not on grave suspicion or
probabilities. That I have not been so satisfied in this instance does not
preclude the possibility of guilty verdicts in other similar cases where less flawed
witnesses are called to give evidence.
[555] I recognise that a great deal of time and
effort has been put into this case by members of the Historical Enquiries
Team. Much public money has been
invested in this investigation and this trial.
That it has fallen short of satisfying me beyond reasonable doubt of the
guilt of all but one of these accused is no reflection on the courage,
determination and dedication coursing through the thousands of pages of
evidence of many of the witnesses who came before me. In particular I pay
tribute to the widow of
[556] I have no doubt that the determination of
the police to bring to justice the killers of