Transcript of the Oral Hearings of 4 September 2012

           1                                      Tuesday, 4 September 2012

           2   (10.15 am)

           3   SIR CHRISTOPHER HOLLAND:  Yes, Mr Underwood?

           4   MR UNDERWOOD:  Good morning, sir.  I was at the point of

           5       opening the intelligence log kept by Silver and

           6       Detective Sergeant Heerey.  We find it at page D5476.

           7   SIR CHRISTOPHER HOLLAND:  Just give me one moment.

           8   MR UNDERWOOD:  It is referable to paragraph 92 of my --

           9   SIR CHRISTOPHER HOLLAND:  D5?

          10   MR UNDERWOOD:  D5476.  (Pause).

          11           We have done some work on this so that it's fit for

          12       publication; without, I hope, taking out anything at all

          13       relevant.  On the front page, we explain some of that.

          14           There are two names that have been changed to -- or

          15       identities changed to Associate 1, which transpired to

          16       be Frank Graham, and Associate 2, who transpired to be

          17       Mr Rodney.  There are some "dot, dot, dots" where we

          18       have taken some words out, and there are some phrases

          19       that we have reduced by way of gistings or cipherings,

          20       and those are in italics.

          21           So if we go to 5477.  This is part of the log kept

          22       by Silver, and it is at 10.30 pm on 28 April 2005; which

          23       is, as you will recall, pretty much the time when he

          24       came on the scene, having been given some information by

          25       S3.  And we can see that at this stage, he has got the


                                             1
 
           1       identities of the Principal, who is at Friern Barnet or

           2       North Finchley, Wesley Lovell who is known to Trident,

           3       and three other associates.  That is the Fulham area.

           4       The information is:

           5           "Meet with unknown Colombians tonight, Edgware.

           6       Group carrying firearms for a ripoff.  Deal re

           7       substantial quantity of verified Class A drugs

           8       (cocaine)."

           9           And then some information which appears not to have

          10       come from Customs.  As we have seen, it looks like S3

          11       managed to garner some material which did not come out

          12       of the intelligence being gathered by Customs.  It is:

          13           "Threats to life (previous).

          14           "1.  Victim Wakefield (handcuffed).

          15           "2.  Nigerians times 2 to be robbed/shot.  One

          16       arrested to disrupt threat in possession of 1 kilo.

          17           "3.  Access to machine guns."

          18           Then over the page.  Again, this is part of Silver's

          19       log and it is 29 April, and --

          20   SIR CHRISTOPHER HOLLAND:  It is the 29th?

          21   MR UNDERWOOD:  It is.

          22   SIR CHRISTOPHER HOLLAND:  Yes.

          23   MR UNDERWOOD:  And we have got the name of the operation,

          24       Operation Tayport, and again we have got these

          25       individuals: Principal, Associate 1, Associate 2,


                                             2
 
           1       Wesley Lovell.  By this stage, we have got some places.

           2       There is a Nandos, McDonalds and a restaurant called

           3       Mama Calabas in Watford Way in Hendon.

           4   SIR CHRISTOPHER HOLLAND:  Sorry, which page are we on?

           5   MR UNDERWOOD:  5480, I am so sorry.

           6   SIR CHRISTOPHER HOLLAND:  I see.  5480, yes.

           7   MR UNDERWOOD:  As I say, we have those identities.  We have

           8       Nandos and McDonalds in Colindale, and Mama Calabas in

           9       Hendon.  There is an entry for 10.40.  Then at 11.14:

          10           "HMRC intelligence efforts to locate Associate 2."

          11           And then it continues down, and then the final entry

          12       on that page is at 12.25 midday:

          13           "Associate 2 in possession of what HMRC clarify is

          14       a machine gun."

          15           And you will be hearing evidence about the interplay

          16       between S1 and S2 on the one hand, and Silver on the

          17       other, when they had discussions about their assessment

          18       of the intelligence.

          19           And then at D5481.  Again, I don't need to go to

          20       every entry.  I am picking up the ones that may be most

          21       important here.  At 13.31:

          22           "Intelligence includes clarification by HMRC re

          23       probable nature of firearms and that includes a machine

          24       gun.  Also intelligence about ammunition and handgun."

          25           And then if we go to 5482, we see that:


                                             3
 
           1           "Associate 3 is known to Colombians.  There is

           2       intelligence that associates 1 and 2 will both be armed

           3       probably with automatic weapons which include machine

           4       guns.  Clarification sought and confirmation received

           5       that this included machine guns.  Intelligence includes

           6       mention of Principal, Colombians and Associate 3."

           7           And then over at 5484, we see the final entry on

           8       that page is at approximately 8 pm, that is on the 29th

           9       still:

          10           "Intelligence is that the deal will now not take

          11       place until tomorrow."

          12           That is over the page.

          13           And then if we jump to 5486, it is the front cover

          14       of the continuation of the log, and from hereon in, logs

          15       are kept by Detective Sergeant Heerey.

          16   SIR CHRISTOPHER HOLLAND:  I only interrupt, it may not

          17       matter much, but the entry at 5485 suggests that what we

          18       have been reading is Gold.

          19   MR UNDERWOOD:  No, it is that he signed it off.

          20   SIR CHRISTOPHER HOLLAND:  He signed it off?

          21   MR UNDERWOOD:  On 1 May.

          22   SIR CHRISTOPHER HOLLAND:  Yes, okay.

          23   MR UNDERWOOD:  5487, Detective Sergeant Heerey starts off by

          24       setting out S1 and S2 and the name of the HMRC

          25       intelligence operation.


                                             4
 
           1           And then at 5488, we see the beginning of the flow

           2       of information to him:

           3           "No further info about Associate 2 overnight.  Some

           4       Intel about Wes Lovell.  Some Intel about the intentions

           5       of Associate 1 [that is Mr Graham].  Intelligence that

           6       Associate 1 [that is Mr Graham] is a bit mental.  Likes

           7       violence and gets excited.  Also other information about

           8       Associate 1."

           9           If we go over to 5489:

          10           "Early afternoon -- intelligence indicating that at

          11       some stage Associate 2 intends to supply a drug sample

          12       to unidentified purchasers.  Intelligence indicating

          13       Associate 2 is in Fulham, but does not provide

          14       an address.

          15           "Mid afternoon -- intelligence indicates the

          16       importance of a cafe in the Fulham area.  Intelligence

          17       provides no cafe name."

          18           If we go over to 5490.  Surveillance officers are

          19       sent to a cafe in Greyhound Road, and they there see

          20       Associate 2, as he is called here, with a blue jacket

          21       and a white T-shirt.  As I say, he is using a silver

          22       mobile.

          23           "Intelligence recorded, indicating Associate 2 and

          24       his continued involvement in the planned robbery."

          25           So they fix onto him, and then you start seeing what


                                             5
 
           1       is fed into this from the surveillance team as well;

           2       namely the Mercedes A-class we have heard of and the

           3       silver Golf.

           4           If we go to 5493.  Again, what looks like the result

           5       of a discussion between the police on the one hand and

           6       the intelligence officers on the other:

           7           "HMRC Intel team assessment ... that intelligence

           8       indicates that the group were in the advanced stages of

           9       planning the robbery of the Colombians."

          10           Then if we go over the page to 5494, in the

          11       italicised part:

          12           "Intelligence about the intended robbery continued

          13       to be gathered.  The intelligence indicated the group

          14       was intent upon committing the robbery.  The location

          15       was still unknown, other than by reference to a general

          16       area.  HMRC assessment was that associates 1, 2 and 3

          17       and Wes Lovell would be involved in the robbery and at

          18       least two of the group would be armed with firearms

          19       believed to be machine guns or rapid-fire weapons."

          20           If we go to 5499:

          21           "Approximately 4.45 pm -- intelligence suggested

          22       that there were weapons outside the immediate control of

          23       the people under surveillance, including a machine gun,

          24       and that the group was seeking to gain access to another

          25       firearm."


                                             6
 
           1           And at 16.52, there is a review of tactics with E1.

           2           And then if we go to 5501.  What we see here is

           3       an entry of "the two rucksacks into vehicle from

           4       Guinness Trust" is a reference to surveillance from

           5       earlier in the day that has been picked up into this

           6       log.

           7           "Stripey top rucksack into the Golf.  One bag in,

           8       one bag out.  Uxbridge Road to Old Oak."

           9           And then if we go over the page to D5502, there is

          10       a reference to "Surv", i.e. surveillance, at the top, at

          11       17.22 and the Principal is "on plot", i.e. under

          12       surveillance.

          13           "Surveillance to Golf times two, plus Principal."

          14           And to the italicised part:

          15           "Intel indicated deal still likely to happen that

          16       evening, but HMRC could not provide an address."

          17           Now there is a new holdall in the Golf.  The

          18       original rucksack has gone into the Guinness Trust.  And

          19       there is an entry for 17.25:

          20           "HMRC suggested that there were still weapons,

          21       possibly including a machine gun, outside the immediate

          22       control of the people under surveillance.  Intelligence

          23       continued to suggest that the group was seeking to gain

          24       access to another firearm."

          25           And then if we go over to D5503.  Just taking the


                                             7
 
           1       left-hand column:

           2           "Opinion of HMRC Intel team

           3           is that the barber's shop is the centre of the

           4       operation.”

           5           And then at 18.02, there is a further discussion of

           6       tactics with A1; and at 18.17, Detective Superintendent

           7       South is consulted re: the tactics.  And then:

           8           "Later I received further intelligence from HMRC

           9       that suggested there was a further firearm under the

          10       control of an unknown individual."

          11           And on to 5504, we see an entry for 18.30; again,

          12       this is from surveillance, as you can see.  It describes

          13       men walking around.  And on the right-hand side, about

          14       halfway down, S2, that is suspect 2, is the name now

          15       being given to Associate 2.  He is medium build,

          16       horizontal stripey top, IC3, light, and navy black

          17       shoes.  And it describes the others.

          18           Over the page at D5505.  At 18.00 to 18.30, there is

          19       a review of tactics again with SO19.  And the final

          20       entry on that is:

          21           "S2 [that is what turned out to be Mr Rodney] put on

          22       long three quarter length coat, blue, light shoulders.

          23       All four into vehicle."

          24           Then at this point, they are in Harlesden.  And if

          25       we go over to D5507.  At 7.04 pm:


                                             8
 
           1           "S4 [suspect 4] has a red (holdall) plastic and

           2       carrier bag, did not have it when he entered Wendover."

           3           We get that from the surveillance.  That is the red

           4       plastic bag, as we apprehend it, which turned out to

           5       have the ammunition for the Colt that was found in the

           6       back of the Golf.

           7           At 19.04, the intelligence was that the Golf and

           8       occupants were moving off to an area within Edgware.

           9       And then there is a summary of what is going on:

          10           "Rucksack and plastic bag."

          11           On the left-hand side. there is S2 which, as I say,

          12       in the end transpired to be Mr Rodney.  Suspect 4 and

          13       somebody they call the "Lump".  What happened here is

          14       that quick descriptions are given by surveillance

          15       officers, unkind or otherwise, and the person who turned

          16       out to be Mr Lovell wasn't recognised by the

          17       surveillance officers.  He was called the "Lump" in the

          18       surveillance notes.

          19   SIR CHRISTOPHER HOLLAND:  That, you believe, is "Lump"?

          20       Yes.

          21   MR UNDERWOOD:  And then 19.21:

          22           "Convenient time."

          23           And then:

          24           "Due to intelligence, move to Amber."

          25           That is handing control over to SO19.


                                             9
 
           1           And then on the left-hand side:

           2           "A406 not suitable."

           3           Because one of the roads between Harlesden and where

           4       it was thought the Golf was driving to was the A406, and

           5       you will be hearing from the officers who took the view

           6       that an interception on a road like that would have

           7       caused chaos.

           8           Then over at D5508, there is a description again of

           9       the surveillance driver:

          10           "Dreads plus beard, beanie hat.  'A5 chosen option'.

          11       A406 not suitable due to traffic two lanes [as I said],

          12       cause chaos."

          13           And yet again a reference to HMRC:

          14           "Intelligence was that the group was in possession

          15       of a number of weapons, including a number of machine

          16       guns."

          17           And at 19.28:

          18           "Control handed to SO19 from SCD11."

          19           That is State Amber, as I say.

          20           Go over at 5509.  19.30, the subjects at A406.

          21       "Holiday Inn", that is a reference to passing the

          22       Holiday Inn on the North Circular road.  And then the

          23       shooting happens.  The next entry is 19.50:

          24           "Peter [that is Peter South we take it] informed/pub

          25       entered [that is the Railway Arms outside which this


                                            10
 
           1       happened].  Customers spoken to re incident.  Two

           2       prisoners, SO19, PIP ..."

           3           And then it sets out who the exhibits officers are,

           4       et cetera.  And that is the end of the intelligence log.

           5   SIR CHRISTOPHER HOLLAND:  "PIP" stands for?

           6   MR UNDERWOOD:  Post-incident procedures.

           7   SIR CHRISTOPHER HOLLAND:  And "DPS"?

           8   MR UNDERWOOD:  I am so sorry, Department of Professional

           9       Standards -- or Directorate of Professional Standards,

          10       I am so sorry.  (Pause).

          11   SIR CHRISTOPHER HOLLAND:  And it ends up at 8.10,

          12       "Commander Armond."

          13   MR UNDERWOOD:  Yes.  Commander Armond, from whom you will be

          14       hearing, who turns up to manage the scene.

          15   SIR CHRISTOPHER HOLLAND:  Yes, okay.

          16   MR UNDERWOOD:  A good deal of what is in my opening was to

          17       put people on notice of how the evidence is likely to

          18       unfold and to give an overview.  I need not go through

          19       all of it and I am going to skip parts of it at this

          20       stage, if I may.

          21           But what I will do is to briefly come to the way the

          22       surveillance was carried out.  There were essentially

          23       two areas in which surveillance was conducted, of which

          24       we have photographic records.  One is in the Fulham area

          25       and for which we have a very short video clip; and the


                                            11
 
           1       other is in the Harlesden area, and again we have some

           2       video of that, but all I want to do is to show you

           3       a couple of still photos from it.

           4           Can I show you the short video in Fulham?

           5                     (Video played to court)

           6   MR UNDERWOOD:  So there we have Mr Rodney going towards the

           7       Golf; and as I suggested yesterday, there may be

           8       a question mark about whether the surveillance officers

           9       at various stages had the opportunity to identify

          10       Mr Rodney from the photographs that they had in their

          11       briefing packs.  We can see, probably not much chance

          12       for that ...

          13   SIR CHRISTOPHER HOLLAND:  It is right to say, isn't it, that

          14       from what you have shown me, there was quite a number of

          15       photographs?  It wasn't just --

          16   MR UNDERWOOD:  Very little in the Fulham area, and that is

          17       pretty much the height of what they saw, or at least

          18       recorded there.  There is quite a lot, however, in

          19       Harlesden; and if we can just very briefly look at the

          20       Harlesden photographs, P209 and P211.  These are simply

          21       screen shots from the video, which we will play when we

          22       come to officers giving evidence.

          23           At P209, we see Mr Rodney in the bottom photograph,

          24       face-on; and you have seen the description already, that

          25       he had this hooped T-shirt, or shirt, and a jacket.


                                            12
 
           1   SIR CHRISTOPHER HOLLAND:  So that is Mr Rodney.  Right.

           2   MR UNDERWOOD:  And if we go to page 211; again, just by way

           3       of example.  In the middle photograph, there is

           4       a gentleman with a white shirt.  That is Mr Lovell.

           5   SIR CHRISTOPHER HOLLAND:  And the beard.

           6   MR UNDERWOOD:  Exactly.

           7   SIR CHRISTOPHER HOLLAND:  Yes, yes.

           8   MR UNDERWOOD:  And I have indicated in the opening that

           9       there is a surveillance log, which is at D714.  I need

          10       not go to it.  And there is a separate log kept by

          11       detectives who were in the Finchley area, which is at

          12       page 733, and we need not go to that.

          13           So I am going to move on to the hard stop.

          14   SIR CHRISTOPHER HOLLAND:  Yes.

          15   MR UNDERWOOD:  The analysis of it, I would suggest,

          16       essentially poses two questions: what actually happened

          17       and was the shooting justified?

          18           The first of those questions is not at all

          19       straightforward.  There is confusion about the precise

          20       order of events, even with the video.  And indeed, there

          21       are some eye witnesses who will tell you that the

          22       question of who shot Mr Rodney is not completely

          23       straightforward.

          24           A number of civilians looking at the scene thought

          25       they saw, still think they saw, other police officers


                                            13
 
           1       firing; and it is only fair, of course, that we call

           2       those witnesses so that they can give their accounts.

           3       We will take you through the munitions logs, which

           4       I anticipate will show that no other officer did fire

           5       a shot; and of course, we will look at the ballistics

           6       evidence.  Nonetheless, there are issues even over that.

           7           Obviously, as everybody knows, the recollections are

           8       dramatic, and fast-moving events are very difficult

           9       for --

          10   SIR CHRISTOPHER HOLLAND:  Well, it is notorious.

          11   MR UNDERWOOD:  Yes, exactly.  And so despite everybody's

          12       best efforts, there may be confusion in their minds.  It

          13       is only fair that I don't open the various conflicting

          14       accounts, so as to allow you to judge it fresh.

          15           Fortunately, we do have a lot of scientific evidence

          16       that I will come to.

          17           The second issue under this, "Was the shooting

          18       justified?" obviously involves analysing the evidence

          19       about the stop as E7 perceived it, and that itself

          20       entails looking at accounts given after the event.

          21           E7 made a statement on 2 May in which he described

          22       movements which he said Mr Rodney made after the

          23       Vauxhall immediately came to a halt.  And if we look at

          24       that now, we can see at S303 how he described the

          25       events.  On the first page, he sets out his postings.


                                            14
 
           1           And if I go to page S304.

           2   SIR CHRISTOPHER HOLLAND:  Just one moment, please.  (Pause).

           3           I will watch it on the screen.

           4   MR UNDERWOOD:  If it is any help, in terms of picking it out

           5       of your bundle, it is referred to in paragraph 97 of my

           6       opening.

           7   SIR CHRISTOPHER HOLLAND:  It is.

           8   MR UNDERWOOD:  Picking it up from the top of S304, he says:

           9           "I went with colleagues to the armoury where I drew

          10       and signed for my issue pistol and three magazines of 17

          11       rounds and a G36C carbine and two magazines of 30

          12       rounds.  I also drew and signed for four distraction

          13       grenades.  I then helped to kit out my vehicle with my

          14       personal equipment and vehicle equipment.  I was to sit

          15       in the front passenger seat and my role would be to

          16       cover my colleagues as they deployed in the event of

          17       a vehicle interception.  In light of the briefing,

          18       I also placed my ballistic helmet in the vehicle to

          19       afford me additional protection.

          20           "When all our vehicles were loaded and the crews

          21       were ready, we moved to ED police station for the main

          22       briefing.  This was given by Silver for the operation.

          23       He told us that a group of unknown males were planning

          24       to rob a group of rival drug dealers of a quantity of

          25       Class A drugs.  The robbery would take place at


                                            15
 
           1       an unknown location.  We were told that the suspects had

           2       access to fully automatic weapons.

           3           "At the end of the briefing, I was left in no doubt

           4       that we would be dealing with highly dangerous

           5       individuals if we were required to intervene in their

           6       planned crime.  A surveillance operation supported by

           7       ourselves would be mounted, in order to identify the

           8       suspects and prevent their robbery.  The operation was

           9       authorised by Gold who had also authorised the

          10       deployment of specialist munitions [those are the

          11       handguns I spoke of].  The warning in relation to the

          12       use of force and the use of firearms was given by Silver

          13       for the benefit of all firearms officers employed on the

          14       operation.  E1 then gave a further tactical briefing

          15       highlighting possible contingencies.

          16           "We then drove to [Fulham] police station where we

          17       held in the station yard (we arrived at 0945).  While

          18       there, we were able to monitor the surveillance teams

          19       radio communications.  We were also given regular

          20       intelligence updates from Silver via E1.

          21           "At about 1500 I became aware of increased radio

          22       traffic regarding suspects' activity, from the

          23       surveillance team, in the Fulham area.

          24           "At about 1705 as a result of radio transmissions,

          25       I became aware that the surveillance team were following


                                            16
 
           1       a Silver VW Golf motor vehicle [and he gives the

           2       registration], containing several black males, away from

           3       the Fulham area towards North West London.  Our team

           4       then left [Fulham] to provide armed support to the

           5       surveillance team.

           6           "As a result of the radio commentary, I became aware

           7       that the Golf had stopped in the Harlesden area and we

           8       stopped at a holding area within clear radio

           9       transmission distance of the surveillance team.

          10           "At about 1800, E1 gave our vehicle an update

          11       briefing, stating that Silver had confirmed that the

          12       suspects were in possession of fully automatic weapons

          13       and were seeking access to a further weapon.

          14           "By this time I was aware, as a result of

          15       surveillance communications, that the suspects were on

          16       foot in the general vicinity of the Golf which was

          17       parked and unattended.  E1 reminded us that this latest

          18       intelligence confirmed the previous information given at

          19       briefings and reminded us that we should be mindful of

          20       our own safety and deal with the suspects firmly and

          21       decisively when called upon to arrest them.  He

          22       discussed various tactical options, including the

          23       possibility of the suspects being in two vehicles.

          24           "I continued to listen to the surveillance

          25       transmissions regarding the movement of a number of


                                            17
 
           1       suspects in the streets adjoining the parked car.  At

           2       one point, descriptions of the suspects and their

           3       clothing was given.  One of the suspects was now

           4       described as wearing a blue three quarter length coat

           5       [of course, that is Mr Rodney as we now know].  It was

           6       a hot spring day and I personally felt that this might

           7       be significant in light of the type of weaponry that we

           8       had been told the suspects had access to.  There was

           9       also mention of a bag [again, that is the reference,

          10       I think, to the red bag that we saw being spoken of in

          11       the surveillance].

          12           "We followed as a group in support.  We then

          13       received a radio transmission from E1 stating that the

          14       suspect vehicle was on route to an area within Edgware.

          15       When the vehicle reached the A40, we were informed via

          16       the radio that permission had been given to intercept

          17       the vehicle at the first opportunity when it would be

          18       safe to do so.

          19           "When we reached the A406 'State Amber' was given

          20       and we began to make progress through the surveillance

          21       team to catch up with the suspects' vehicle.  We turned

          22       left into Mill Hill Broadway and I saw the silver Golf

          23       several vehicles in front of us.

          24           "At the roundabout just past the M1 overpass, E1

          25       gave 'State Red' as the Golf turned right into


                                            18
 
           1       Hale Lane, followed immediately by Alpha driven by E5

           2       travelling west.

           3           "At 1943, as we approached the roundabout at the

           4       junction with Deans Lane, Alpha overtook the Golf

           5       followed by our vehicle.  Immediately prior to this,

           6       I heard E4 say that we would take the vehicle before the

           7       roundabout and E3 say 'attack, attack, attack!' over the

           8       radio.  I saw Alpha swerve in front of the Golf.  I put

           9       on my ballistic helmet and shouldered my G36.  I was

          10       looking at an angle through the rear window of the Golf

          11       and I was positioned to its rear offside.

          12           "My attention was drawn to the rear seat passenger.

          13       I could see his head; he appeared to be looking around.

          14       We moved forward and I found myself alongside the rear

          15       offside window of the Golf.  I saw the rear seat

          16       passenger apparently leaning forward in his seat,

          17       holding the front passenger seat.  He turned his head

          18       away from me and appeared to look over his left

          19       shoulder, towards the back of the vehicle.  Suddenly he

          20       turned his head in the opposite direction, over his

          21       right shoulder.  Suddenly he ducked down and I was

          22       looking at the top of his head.  He appeared to be

          23       reaching down onto the passenger seat or floor well.

          24       I feared that he was reaching for a weapon.  I held my

          25       fire, waiting to see what he would do next.


                                            19
 
           1           "Suddenly his head popped up and he appeared to look

           2       through the front windscreen.  His shoulders were

           3       hunched.  Everything about his actions and his body

           4       language led me to believe that he had picked up

           5       a firearm and was preparing to shoot a fully automatic

           6       firearm, but I still couldn't see a weapon.

           7           "I was aware that my colleagues were deploying on

           8       foot from their vehicles.  I believed that I couldn't

           9       delay my decision to fire any longer.  We had been told

          10       that he had access to fully automatic weapons and I felt

          11       that my colleagues were in immediate danger.

          12           "I opened fire through the closed nearside rear

          13       window of the Golf and the window shattered.  I fired

          14       several shots in quick succession.  I could see no

          15       effect from my rounds on the suspect.  The remaining

          16       glass in the window was obscuring my vision and I moved

          17       slightly and saw the suspect's head and shoulders

          18       upright in the vehicle.  I fired several more shots and

          19       he appeared to pitch forward and out of my view across

          20       the rear seat.

          21           "I immediately left the vehicle.  I still didn't

          22       know if I had hit him, so I moved to the rear of the

          23       vehicle and attempted to cover through the rear

          24       windscreen, but I was now looking into the interior from

          25       an angle.  The upholstery was dark and the subject was


                                            20
 
           1       wearing dark clothing.  I smashed the rear window with

           2       the muzzle to give myself better vision, as the light

           3       was reflecting off the glass.  E3 had now opened the

           4       rear nearside door and was leaning in over the suspect.

           5       I moved to the rear nearside as E3 pulled the suspect

           6       into a sitting position.  I saw a lot of blood spray out

           7       of the suspect and noticed he had serious head

           8       injuries."

           9           If I move it down a few lines.  He backed the

          10       vehicle up to allow the Golf to open.  He says he was

          11       approached by E1 who asked if he was all right, and he

          12       sat in the control vehicle.  So just picking the final

          13       two sentences up:

          14           "From pulling alongside the vehicle, through

          15       assessing the situation and opening fire took a matter

          16       of seconds.  The windows of the suspect vehicle were

          17       closed.  E7 and I did not shout an oral warning.  E7 and

          18       I returned to HD [that is the police station] for PIP

          19       and finished duty at 0330."

          20           As I say, it is notorious that eye witnesses,

          21       particularly of dramatic and perhaps frightening

          22       situations, cannot necessarily capture precisely what

          23       happened and we will be hearing psychological evidence

          24       about that.  Nonetheless, in order to determine what did

          25       actually happen, one is going to need to test the


                                            21
 
           1       accuracy of that statement.

           2           But there is one error in it which was corrected in

           3       a later statement by E7; that is that he opened fire

           4       through the nearside rear window of the Golf.  In the

           5       later statement he says, "Obviously I meant offside".

           6   SIR CHRISTOPHER HOLLAND:  Well, that is just a simple error.

           7   MR UNDERWOOD:  There is unfortunately a conflict of

           8       expertise about some words heard to be said on the video

           9       after this about whether, in fact, Mr Rodney had a gun

          10       in his hand when he was shot; and if those words were

          11       said immediately after the shooting, whether they were

          12       said by E7 and if they were, why.  We will come to that

          13       in a minute.

          14           What we have, as I have continually said, is a good

          15       deal of scientific evidence and we have the video

          16       footage from E12 in its raw form that we have seen.  As

          17       I have said, we have these incident data recordings and

          18       we have managed to synchronise those with the video.

          19           The state pathologist, Dr Shorrock, conducted

          20       a post-mortem and he has given his notes.  Ms Alexander

          21       herself commissioned an independent post-mortem from

          22       Dr Crane in Belfast.  He, too, has given us his report

          23       and we have his notes.

          24           The IPCC and the Metropolitan Police themselves

          25       commissioned a forensic scientist to carry out a whole


                                            22
 
           1       battery of tests and they resulted in a number of

           2       reports.  As I have said, we have done a juxtaposition.

           3       We have done a partial reconstruction exercise.

           4           Perhaps we can now have a look again at the video

           5       with the time codes added and those colours, so that you

           6       can see just how quickly everything happened.

           7           So again, when the blue bar is up, that is the

           8       Vauxhall moving.  The interesting thing is to look at

           9       when that blue bar goes down and when the shots occur.

          10                     (Video played to court)

          11   MR UNDERWOOD:  Again, very difficult to disentangle without

          12       the expertise.  Fortunately we have that, and we are

          13       going to call Mr Hague who downloaded the IDR and

          14       cross-referred it.  That is at R9.  I refer to this in

          15       paragraph 105 of my opening.

          16           If I go to --

          17   SIR CHRISTOPHER HOLLAND:  Yes.

          18   MR UNDERWOOD:  If I go to R013.

          19           In paragraph 5.3, Mr Hague talks about the

          20       synchronisation and you can see that he managed to

          21       synchronise a brake light coming on and a frame on the

          22       video.  And then if you look at the Vauxhall data, pick

          23       up paragraph 5.4:

          24           "The Audi [that is the Alpha car] decelerated

          25       rapidly to a halt at 47.2 seconds and then remained


                                            23
 
           1       stationary for 3.0 seconds until it was struck in the

           2       rear by the Golf at 50.2 seconds."

           3           The reason that the Audi was struck in the rear by

           4       the Golf was that it was shunted into it by the Charlie

           5       car.  And then if we look at the Vauxhall data, it gives

           6       the events and if we look on the "brake light on", it is

           7       50.04 and the final stop is 51.5 seconds.  The final

           8       entry in that box is, "Three bangs heard (from

           9       transcript) 52.06".  In fact, those are the second set

          10       of shots.  The first set of shots occurred at 51.56

          11       seconds, i.e. six hundreds of a second, after the

          12       Vauxhall came to a halt.

          13           And at paragraph 5.5, Mr Hague sets out the

          14       movements of the Vauxhall; and that is that:

          15           "The Vauxhall decelerated rapidly to a halt at 47.2

          16       seconds and then started to accelerate rapidly at 48.3

          17       seconds.  After reaching a peak speed of 13 mph, the

          18       Vauxhall slowed rapidly again and finally stopped at

          19       51.5 seconds."

          20           If you recall from the video, what we saw, looking

          21       at the blue bar, is that the blue bar came down as the

          22       Vauxhall stopped, and then it went up again and stopped,

          23       and then went down again before the shot.

          24           Then the Lexus data, over the page at R014, shows

          25       that it stopped at 50 seconds.  And at 5.6, Mr Hague


                                            24
 
           1       says:

           2           "The Lexus decelerated rapidly and then at a more

           3       normal rate to a speed of 7 mph.  It was then

           4       accelerated rapidly over a period of 0.7 seconds to

           5       a speed of 11 mph, when it collided with the rear of the

           6       essentially stationary Golf.  The Lexus slowed to about

           7       6 mph as a result of the collision, and then slowed

           8       rapidly ..."

           9           So there you've got the box in which the Vauxhall

          10       comes to a halt.  It moves off again, before it finally

          11       stops.  The Lexus slows down, then accelerates into the

          12       back of the Golf, shunting it into the back of the Audi.

          13           And he says, that is Mr Hague, that he sets this out

          14       in a graph.  We will look at the graph now.

          15           Then if I can jump through to paragraph 121 of my

          16       opening note.  What we see is a report from Mr Miller.

          17   SIR CHRISTOPHER HOLLAND:  Sorry, just wait a moment.  Yes,

          18       I have it.  No, just -- I am so sorry.  I have got it.

          19   MR UNDERWOOD:  Yes.  Mr Miller was a forensic scientist who

          20       worked at the Forensic Science Service at the time.

          21       Now, in fact, he works for the Metropolitan Police

          22       Service.

          23           He was called to the scene.  We have seen

          24       photographs of a mannequin placed in the Golf with the

          25       trajectory rods in, and he is the one who did that work.


                                            25
 
           1       We asked him to do some further work for us, to attempt

           2       to see what the order of firing was, and where it was

           3       that Mr Rodney was located in the car and when he was

           4       hit.

           5           And you can see, at page R542, the requests.

           6           The first was whether it was possible for E7 to have

           7       fired six shots in 1.4 seconds.  The reason for that is

           8       to attempt to clarify whether what we hear, the eight

           9       shots on the audio track, could possibly have been E7

          10       firing.  And the answer to that is: yes, it could.

          11           Number 2: whether it is possible to determine the

          12       order in which the six shots hit Mr Rodney.

          13           Thirdly: whether you can provide an opinion about

          14       whether the two shots into the top of Mr Rodney's head

          15       were fired before or after E7 paused in the midst of

          16       firing.

          17           Four: what was the position of Mr Rodney when he

          18       received the two shots in the top of his head?

          19           Five: in your opinion, in the period within which

          20       the shots were fired by E7, was Mr Rodney in the

          21       position described by E7 in his statement of 2 May 2005?

          22       I have just read that out.

          23           I should make it clear that, of course, the answers

          24       to those questions are hard hearing and it may well be

          25       that Ms Alexander would not like to hear them.


                                            26
 
           1           So going over the page, answering the question of

           2       whether it is possible to determine the order in which

           3       the six shots hit Mr Rodney:

           4           "Based on the eight 5.56 x 45-millimetre calibre

           5       cartridge cases that were recovered from the scene, in

           6       my opinion, eight shots were fired from E7's G36 during

           7       the incident.  Of these eight shots, six caused

           8       penetrating ..."

           9   SIR CHRISTOPHER HOLLAND:  Sorry, can we just see where you

          10       are reading from?

          11   MR UNDERWOOD:  I am so sorry, at the top of page R544.

          12   SIR CHRISTOPHER HOLLAND:  Yes.

          13   MR UNDERWOOD:  So the second sentence:

          14           "Of these eight shots, six caused penetrating

          15       injuries to Mr Rodney, one embedded in the door of the

          16       Golf and one appeared to miss Mr Rodney.  Before

          17       an opinion about the possible order of these shots can

          18       be offered, a number of issues need to be considered,

          19       namely: the trajectories of the shots through the car,

          20       the trajectories of the shots into Mr Rodney's body; the

          21       period of time in which the shots were fired; the likely

          22       effects of the injuries caused by the shots; and the

          23       information in some of the witness statements concerning

          24       the shooting.

          25           "The first stage in the reconstruction is to


                                            27
 
           1       determine the position of the shooter.  This can be done

           2       based on the trajectory of the five of the eight shots

           3       that struck the Golf.  The trajectory of these shots is

           4       approximately horizontal (slightly downwards) and at

           5       right angles to the side of the Golf.  In my opinion, it

           6       is reasonable to conclude that the other three shots

           7       that were fired also had this trajectory because the

           8       shots were fired quickly and there was a lack of

           9       opportunity for significant movement of the shooter,

          10       given that he was firing from inside a car.

          11           "The trajectories in the car are shown by metal

          12       trajectory rods in the photograph on the following

          13       page."

          14           You can see those.  And then the second stage in the

          15       reconstruction is to determine the trajectories of the

          16       six shots that penetrated Mr Rodney's body.  In

          17       ascending order of their location in Mr Rodney's body,

          18       these shots and their trajectories were as follows:

          19           "One: right of back.  Direction, right to left.

          20       Approximate trajectory, steeply downwards.

          21           "Two: located in the right arm, moving from right to

          22       left and horizontal.

          23           "Three: in the right ear, right to left, steeply

          24       downwards.

          25           "Four: right ear, right to left, steeply downwards.


                                            28
 
           1           "Five: top of head, right to left, steeply

           2       downwards.

           3           "Six: top of head, right to left, steeply downwards.

           4           "The approximate trajectories in Mr Rodney's body

           5       are represented by metal trajectory rods in a mannequin

           6       in the two photographs on the following page."

           7           And again, we can see those at R546.

           8   SIR CHRISTOPHER HOLLAND:  So when it says "steeply

           9       downwards", this is steeply downwards as from the

          10       door --

          11   MR UNDERWOOD:  Exactly.

          12   SIR CHRISTOPHER HOLLAND:  -- from which the firing was

          13       taking place, the car door, downwards?

          14   MR UNDERWOOD:  Yes.  I think he means: if you place the

          15       mannequin upright, they are steeply downwards.  He is

          16       saying that the shots were fired pretty much

          17       horizontally.

          18   SIR CHRISTOPHER HOLLAND:  That is why I couldn't quite

          19       follow.

          20   MR UNDERWOOD:  So he is saying: given a mannequin, as we

          21       look at R546, which is placed upright, and these are

          22       angled steeply downwards.

          23   SIR CHRISTOPHER HOLLAND:  Well, it will no doubt become

          24       clearer when Mr Miller gives evidence.

          25   MR UNDERWOOD:  If we go over the page.


                                            29
 
           1   SIR CHRISTOPHER HOLLAND:  Yes, I think I begin to see.  If

           2       you look at 547.

           3   MR UNDERWOOD:  Yes, and 548.

           4   SIR CHRISTOPHER HOLLAND:  It postulates Mr Rodney in the

           5       upright position.

           6   MR UNDERWOOD:  Yes.

           7   SIR CHRISTOPHER HOLLAND:  He therefore has a horizontal

           8       shot.

           9   MR UNDERWOOD:  Exactly.  Then if we look at R548, he

          10       postulates Mr Rodney --

          11   SIR CHRISTOPHER HOLLAND:  He postulates him then being down.

          12   MR UNDERWOOD:  Exactly.  And at R549, pretty much

          13       horizontal.  And so the shot into the top of the head,

          14       I am sorry to be so graphic about this, can be described

          15       as "steeply downwards", if the person is vertical.  But

          16       of course, it is horizontal if the man is horizontal.

          17           So if we pick up the text again at R547:

          18           "The final stage in the reconstruction is to align

          19       the trajectories of the shots in the Golf with those of

          20       Mr Rodney's injuries.

          21           "The approximately horizontal shot to Mr Rodney's

          22       right arm appears to have occurred when he was sitting

          23       more or less upright, with his torso facing

          24       approximately forwards.  The sort of position he might

          25       have been in is illustrated in the photograph below."


                                            30
 
           1           And then:

           2           "It is not possible to say where Mr Rodney's head

           3       was positioned when he was shot in the arm.  It is also

           4       not possible to say exactly whereabouts on the rear seat

           5       of the Golf he was sitting; however, it does not appear

           6       to have been any further to the offside than about the

           7       middle of the seat, based on where his body needs to be

           8       positioned for the other five shots described below.

           9       The sort of position Mr Rodney appears to have been in

          10       when he was shot in the back is illustrated in the

          11       photograph on the following page."

          12           And they are fairly difficult to pick out in these

          13       black and white copies; but it is Mr Rodney starting to

          14       fall towards his right and falling forwards slightly.

          15           And then the middle of R548:

          16           "The sort of position Mr Rodney appears to have been

          17       in when he was shot twice by the right ear is

          18       illustrated in the photograph below."

          19           So slumping or falling over towards the right, even

          20       more.

          21           And then over at page R549:

          22           "The sort of position Mr Rodney appears to have been

          23       in when he was shot twice in the top of his head is

          24       illustrated in the photograph below."

          25           And again, we have got much more horizontal.


                                            31
 
           1           "As can be seen from this reconstruction exercise,

           2       Mr Rodney's injuries demonstrate markedly different

           3       trajectories, with one being approximately horizontal

           4       and the other five being steeply downwards.  Therefore,

           5       since all of the bullets that entered the Golf appear to

           6       have had the same approximately horizontal trajectory,

           7       Mr Rodney's body must have moved during the period when

           8       the shots were being fired.  The shot to Mr Rodney's arm

           9       required him to be in an upright position, whereas for

          10       the other five shots, all of which had steeply downward

          11       trajectories, there is a requirement for Mr Rodney to be

          12       leaning to varying degrees to his right (i.e. towards

          13       the rear offside door of the Golf) in order for the

          14       horizontal trajectories through the Golf to align with

          15       the steeply downward trajectories in his body.  The

          16       degree to which Mr Rodney needed to lean increased as

          17       follows for the various injuries he received: the shot

          18       to the right of his back, the two shots to his right

          19       ear, and the two shots to the top of his head."

          20           So there is the sequence, as Mr Miller perceives

          21       them.

          22           "Having addressed the positions in which Mr Rodney

          23       needed to be in order to receive the various injuries,

          24       it is now necessary to consider some further issues,

          25       namely the short time taken to fire the shots, together


                                            32
 
           1       with the severity of the injuries received by Mr Rodney

           2       and their likely effort on his ability to move

           3       subsequently.

           4           "As previously stated, it has been determined that

           5       the shots were fired quickly; therefore it appears that

           6       Mr Rodney was moving as some of the shots were being

           7       fired.  In my opinion, this limited timeframe reduces

           8       the options for the type of movement that were possible

           9       for Mr Rodney to make.  Specifically, I think it more

          10       likely that Mr Rodney would go from an upright position

          11       to a leaning one, rather than vice versa, and especially

          12       not from a leaning position to an upright one and then

          13       back to a leaning one.

          14           "Furthermore, although ultimately a matter for

          15       a pathologist, in my opinion, the nature of Mr Rodney's

          16       head injuries, particularly those two to the top of his

          17       head, means that he would have been unlikely to have

          18       moved upwards after these shots were fired.  If this

          19       view is correct, it would support the opinion that the

          20       shots to the top of Mr Rodney's head were fired after

          21       the other shots, since these other shots would have

          22       required him to be in more upright positions (either

          23       completely upright for the arm shot and leaning to

          24       varying lesser degrees to the right for the other

          25       shots).


                                            33
 
           1           "Finally, it may also be helpful to consider whether

           2       any of the injuries could be grouped.  In this regard,

           3       it appears that four of the six shots that hit Mr Rodney

           4       form two pairs, namely the two shots to his right ear

           5       and the two shots to the top of his head.  In the case

           6       of each pair, the entry sites and trajectories are very

           7       close.  In my opinion, particularly given the speed with

           8       which the shots were fired, it seems possible to

           9       conclude that the two shots that make up each pair were

          10       fired one after the other.  Therefore, if one shot from

          11       each pair can be assigned an order in the sequence of

          12       firing, in my opinion it would follow that the other

          13       shot from that pair was fired either immediately

          14       beforehand or afterwards.

          15           "Bearing all of the preceding discussion in mind, it

          16       is now possible to consider whether the order of the six

          17       shots that hit Mr Rodney can be determined.

          18           "In my opinion, the shot to Mr Rodney's right arm

          19       was most likely to have been the first one that hit him.

          20       This opinion is held primarily because Mr Rodney would

          21       need to be upright for this shot, and I do not believe

          22       it would be possible for him to be in this upright

          23       position after any of the other five shots that hit him,

          24       due to how far to the right that he needed to be leaning

          25       when they were fired.


                                            34
 
           1           "As for the other five injuries, in my opinion,

           2       these occurred as Mr Rodney was leaning to his right,

           3       having been shot in his right arm.  I believe that these

           4       injuries were received as part of a dynamic process in

           5       which shots were being fired at the same time as

           6       Mr Rodney was leaning to his right, going from

           7       an upright position to one in which he was leaning

           8       towards the rear offside door of the Golf with his head

           9       near to that door's windowsill.

          10           "In my opinion, since the degree of lean to the

          11       right needs to vary for the different injuries (getting

          12       increasingly steeper for the back, ear and head injuries

          13       respectively), it appears that these five shots are most

          14       likely to have occurred in that order.  In other words,

          15       as Mr Rodney started to lean to his right, he first

          16       received the injury to his back; then as he leaned

          17       further to his right, he received the two injuries to

          18       his right ear; and finally, as he was leaning further

          19       still to his right, he received the two injuries to the

          20       top of his head.  I note that this opinion appears to be

          21       supported by the findings of the forensics biologist

          22       Bridget March who makes the following observations."

          23           And he sets them out, and we will hear from her.

          24       Over to the top of R552:

          25           "As such, the blood spatter evidence appears to


                                            35
 
           1       support the opinion that at least one of the shots to

           2       Mr Rodney's head was fired after he had gone from

           3       an upright position to one in which he was leaning to

           4       his right, with his head near to the rear offside door

           5       of the Golf.

           6           "So far, consideration has only been given to the

           7       order of the six of the eight shots that caused

           8       penetrating injuries to Mr Rodney.  Therefore, it may

           9       now be helpful to consider the other two shots that were

          10       fired, to see if their place in the sequence of shots

          11       can be determined.  One of the bullets from these two

          12       shots embedded in the Golf's door and the other bullet

          13       (or part of it at least) appears to have travelled

          14       through the Golf and shattered the rear nearside

          15       window."

          16           And you will be hearing from E3, who was standing by

          17       that window, that that glass shattered as he was

          18       standing there.

          19           "The key issue in relation to each of these two

          20       shots is whether it formed part of the first group of

          21       six shots that were fired or whether it was one of the

          22       final two shots.  If one of the shots that missed

          23       Mr Rodney was part of the first group, then one of the

          24       shots in the second group must have hit Mr Rodney.

          25       Alternatively, if both of the shots that missed


                                            36
 
           1       Mr Rodney were part of the first group, then both of the

           2       shots in the second group must have hit him.

           3           "Some of the witness statements of E7's colleagues

           4       appear to provide assistance in answering this question,

           5       suggesting as they do that the shot that shattered the

           6       Golf's rear window occurred at an early stage in the

           7       sequence of shots.  In particular, in his statement of

           8       2 May, police officer E3 states that:

           9           "'I moved towards the rear nearside door of the Golf

          10       shouting 'Show me your hands, show me your hands'.  This

          11       was for two reasons.  I hoped to maintain control of the

          12       front seat passenger and also to get a response from the

          13       rear seat passenger.  As I drew level with the rear

          14       door, the glass exploded downwards, hitting me in the

          15       face and the chest'."

          16           Over at 553:

          17           "As I interpret this account, it suggests that

          18       Mr Rodney was alive at the time the window was

          19       shattered.  If so, the account suggests that the window

          20       shattered before Mr Rodney was shot in his head.  This

          21       interpretation appears to be supported by the statement

          22       [of E4] in which he states: 'I was then aware of the

          23       sound of automatic firing coming from inside the vehicle

          24       to officers outside and I believed that I was under

          25       fire.  My alternation [sic] was drawn to the rear near


                                            37
 
           1       passenger window being shattered and that both front

           2       seat passengers were still in the vehicle.'

           3           "As I interpret this account, it appears to suggest

           4       that the window shattered during a rapid burst of

           5       firing, which would be consistent with it occurring

           6       during the first group of six shots.

           7           "If it is accepted that one of the first six shots

           8       missed Mr Rodney and shattered the Golf's rear nearside

           9       window, then in my opinion it would mean that at least

          10       one of the shots to the top of Mr Rodney's head formed

          11       part of the final group of two shots that were fired.

          12           "In other words, in order to fit this missed shot

          13       into the sequence previously suggested for the group of

          14       six shots that hit Mr Rodney, it would mean that there

          15       would now no longer be room for one of the two shots to

          16       the top of Mr Rodney's head, meaning that it would have

          17       to form part of the final group of two shots.

          18           "Furthermore, since in my opinion the two shots to

          19       the top of Mr Rodney's head appeared to form a pair

          20       (i.e. one fired after the other), it appears that they

          21       were the final two of the eight shots, and that

          22       therefore both of the shots that missed Mr Rodney were

          23       fired as part of the first group of six shots.

          24           "Therefore to summarise, in my opinion, the evidence

          25       I have considered suggests that the order of fire


                                            38
 
           1       described on the following page is most likely."

           2           Group 1:

           3           "Shot to arm, shot to back, shot to right ear, shot

           4       to right ear.  At some point during these four shots,

           5       the two shots that missed were fired."

           6           Group 2:

           7           "Shot to top of head, shot to top of head."

           8           And then Mr Miller addresses the question of whether

           9       you can provide an opinion about whether the two shots

          10       into the top of Mr Rodney's head were fired before or

          11       after E7 paused in the midst of firing; and as he says,

          12       yes.

          13           And then number 4: what was the position of

          14       Mr Rodney when he received the two shots in the top of

          15       his head?  He says:

          16           "As discussed above in answer to question 2, in my

          17       opinion, the physical evidence suggests that Mr Rodney

          18       was most likely to have been in the following position

          19       when he received the two shots in the top of his head;

          20       leaning to his right with his head near to the

          21       windowsill of the rear offside door of the Golf.  This

          22       sort of position is similar to the one shown in

          23       photograph P435 from the Inquiry team's reconstruction

          24       exercise that is attached on the following page."

          25           Perhaps we could look at that briefly.  That is one


                                            39
 
           1       I showed a little earlier.

           2   SIR CHRISTOPHER HOLLAND:  Yes.

           3   MR UNDERWOOD:  When we did this partial reconstruction, we

           4       did not have the benefit of Mr Miller's notes.  So going

           5       back to R554, three lines from the bottom:

           6           "However, I think that although the position of the

           7       actor's body in this photograph is broadly correct, his

           8       head should be slightly higher and angled, so that more

           9       of the top of it is presented towards the place from

          10       where the shots were fired."

          11           So going over to R555 again.  Then addressing

          12       question 5:

          13           "In your opinion, in the period within which the

          14       shots were fired by E7, was Mr Rodney in the position

          15       described by E7 in his statement of 2 May 2005?"

          16           And Mr Miller sets out the part of the statement

          17       that I read out, ten minutes or so ago, about

          18       Mr Rodney -- I am so sorry.  I am asked to read it

          19       again:

          20           "I found myself alongside the rear offside window of

          21       the Golf.  I saw the rear seat passenger apparently

          22       leaning forward in his seat, holding the front passenger

          23       seat.  He turned his head away from me and appeared to

          24       look over his left arm, towards the back of the vehicle.

          25       Suddenly he turned his head in the opposite direction,


                                            40
 
           1       over his right arm.  Suddenly he ducked down and I was

           2       looking at the top of his head.  He appeared to be

           3       reaching down onto the passenger seat or floor well ...

           4           "Suddenly his head popped up and he appeared to look

           5       through the front windscreen; his arms were hunched ...

           6       I opened fire through the closed nearside rear window of

           7       the Golf and the window shattered.  I fired several

           8       shots in quick succession ... I moved slightly and saw

           9       the suspect's head and arms upright in the vehicle.

          10       I fired several more shots and he appeared to pitch

          11       forward and out of my view across the rear seat'."

          12           And then back to Mr Miller:

          13           "As I understand E7's description, he appears to be

          14       saying that before he fired the first shot, Mr Rodney

          15       was upright and looking forward.  He states that

          16       Mr Rodney was 'holding the front passenger seat' and was

          17       looking through the windscreen, which in my opinion

          18       suggests that Mr Rodney was sitting somewhere on the

          19       nearside half of the rear passenger seat and looking

          20       forwards between the two front seats.  This sort of

          21       position is similar to the one in photograph P389 from

          22       the Inquiry team's reconstruction exercise that is

          23       attached below.  However, I think that although the

          24       position of the actor's body in this photograph is

          25       broadly correct ..."


                                            41
 
           1           But again, we can, if necessary, see a colour

           2       version of that.

           3           "... it may be that he should be sitting slightly

           4       further back in the seat.  In my opinion, this position

           5       for the first shot would be consistent with the physical

           6       evidence of the first injury to Mr Rodney being the

           7       horizontal one to his right arm."

           8           Going over to R557:

           9           "E7 says that he fired 'several shots in quick

          10       succession'.  This is consistent with the rapid fire

          11       heard on the audio recording as the first group of six

          12       shots was fired.  In terms of the number of shots fired,

          13       E7 speaks of several shots, followed by a pause and then

          14       'several more shots'.  The idea of two groups of shots

          15       (the first at least which is described as quickly fired)

          16       separated by a pause is supported by the audio evidence.

          17       However, describing the second group as 'several more

          18       shots' could be taken to imply that E7 believes he fired

          19       more shots in the second group than the two that the

          20       audio evidence suggests were fired.

          21           "E7 states that he saw Mr Rodney's head and arms

          22       upright after he had fired several shots in quick

          23       succession.  However, this does not seem to be possible,

          24       based on the fact that five of the six shots that hit

          25       Mr Rodney did so at a steeply downward angle and


                                            42
 
           1       therefore would have required him to be leaning to his

           2       right, rather than sitting upright.  Instead, at most,

           3       only one of the six shots that hit Mr Rodney (the one to

           4       his right arm) could have been fired when Mr Rodney was

           5       upright.  After this, the other five shots that hit him

           6       would have required him to be increasingly leaning to

           7       his right for the shot to his back, then the two shots

           8       to his right ear and then finally the two shots to the

           9       top of his head.

          10           "E7's description of Mr Rodney's final position

          11       after he finished shooting was that 'he appeared to

          12       pitch forward and out of my view across the rear seat'.

          13       However, given the position Mr Rodney must have been in

          14       to receive his injuries, particularly the two shots to

          15       the top of his head, he cannot have pitched forward but

          16       instead would have leaned to his right, which would have

          17       brought his head near to the windowsill of the rear

          18       offside door of the Golf.  Therefore, E7's account about

          19       the position of Mr Rodney immediately before the shots

          20       were fired appears to be supported by the physical

          21       evidence.  However, the physical evidence suggests that

          22       the position of Mr Rodney's body immediately after the

          23       shots were fired would have been different to that

          24       described by E7."

          25           So -- and I again apologise for how graphic that


                                            43
 
           1       is -- that concludes that report.

           2   SIR CHRISTOPHER HOLLAND:  Right.

           3   MR UNDERWOOD:  So I will, in my opening note, then go on to

           4       Dr Shorrock's post-mortem report, his notes, and

           5       Dr Crane's report and notes; and then Bridget March's

           6       statement about blood spatter.  I apprehend I don't need

           7       to open those at this stage and I will obviously bring

           8       that about in evidence.

           9           Can I jump, then, to paragraph 138 of my opening

          10       note?

          11   SIR CHRISTOPHER HOLLAND:  Just one moment.  (Pause).  Can

          12       you just give me a moment for some housekeeping?

          13   MR UNDERWOOD:  Yes, of course.  (Pause).

          14   SIR CHRISTOPHER HOLLAND:  138?

          15   MR UNDERWOOD:  It is, yes, which is a reference to page D760

          16       in the documents.

          17   SIR CHRISTOPHER HOLLAND:  I have got it.

          18   MR UNDERWOOD:  Thank you very much.

          19           What the IPCC very helpfully did was to get a number

          20       of people to listen to the audio track that we have

          21       heard on E12's video, to hear what was said directly

          22       after the shooting; and what we, again even more

          23       helpfully, have here from them is a summary of all of

          24       that in schedule 4.  This deals with reports by

          25       Detective Sergeant Tizzard, a forensic scientist called


                                            44
 
           1       Anna Czajkowski, another forensic scientist called

           2       Mr Groninger, Detective Constable Glen Carr, another

           3       forensic scientist called Mr Mills, and a police

           4       officer, A1, who is the head of the surveillance team.

           5           Picking it up on D760, you see that they all --

           6   SIR CHRISTOPHER HOLLAND:  Sorry, D?

           7   MR UNDERWOOD:  D760.  You can see that they transcribe what

           8       they hear on the audio before the shooting; and they

           9       give some timescales to that, and everybody seems to use

          10       a different timescale at that point, and that does not

          11       matter.

          12   SIR CHRISTOPHER HOLLAND:  So what we are looking at is five

          13       people who have analysed or sought to analyse; and we

          14       have, in columns, their respective views which, as we

          15       see, looking across, do vary.

          16   MR UNDERWOOD:  Exactly, although they seem to synchronise at

          17       the bottom box of D760, "Hale Lane, Hale Lane".

          18   SIR CHRISTOPHER HOLLAND:  Yes.  There are obvious ...

          19   MR UNDERWOOD:  And then if we go over to D762, synchronised

          20       again at the top, where they all say, "Attack, attack".

          21       And words to the effect of, "All right, we are going in"

          22       or, "Here we go".  And then, "Sweet as, sweet as" and

          23       gunshots.  So directly after the gunshots and taking

          24       this from left to right.  Detective Sergeant Tizzard

          25       thinks he hears:


                                            45
 
           1           "The boy in the back held up a gun.  Can you tell

           2       the DI please."

           3           Anna Czajkowski thought she had heard:

           4           "Right at the back, hurry up behind."

           5           Mr Groninger heard:

           6           "The guy at the back held up a gun."

           7           DC Carr heard:

           8           "The guy at the back held up a gun.  Can you tell

           9       the DI please."

          10           And Mr Mills heard:

          11           "Right at the back, can you tell the DI."

          12           A1, who we start seeing on the right here, said:

          13           "At the back, hold up the traffic from behind

          14       please."

          15   SIR CHRISTOPHER HOLLAND:  Yes.

          16   MR UNDERWOOD:  If we go over the page to D763; some

          17       swearing.  In the second column, Ms Czajkowski says:

          18           "Radio ..."

          19           A radio transmission which says "three zero".

          20           And A1 also says:

          21           "Acknowledged [over the same radio system, by the

          22       unit] three zero."

          23           What A1 will tell you is that the voice that is

          24       heard is him saying, "Hold up the traffic at the back"

          25       and the acknowledgement "three zero", is an officer who


                                            46
 
           1       is called, signed off, "three zero" acknowledging it.

           2       You will hear from both A1 and the gentleman who was

           3       called three zero.

           4           Obviously the importance of this is if you are able

           5       to come to a conclusion at the end, and that conclusion

           6       should be that somebody said, "The guy at the back held

           7       up a gun".  That is inconsistent with what any officer

           8       says at the scene.  And since the only candidate likely

           9       to have been able to make that comment at the time is

          10       E7, it raises questions about what he might have said.

          11   SIR CHRISTOPHER HOLLAND:  Yes.

          12   MR UNDERWOOD:  If we go to paragraph 145 of my note, we see

          13       more work that has been done on this.

          14   SIR CHRISTOPHER HOLLAND:  Well, there is an obvious issue

          15       which is going to have to be explored carefully in

          16       evidence.  I mean --

          17   MR UNDERWOOD:  Just so, and so I need not go more into that.

          18           What I want to take you on to, next, is what

          19       happened after the shooting and what was said then; and

          20       there are two points to make here.

          21           The first is that somebody is captured on a yet

          22       further video saying something about what had happened;

          23       and the person saying that is probably E1 and probably

          24       briefing the duty inspector.  And again, there is

          25       an issue over that.  That starts a chain of events which


                                            47
 
           1       led to press reporting about Mr Rodney being seen

           2       holding a gun; and I need to take you through that, to

           3       see what the sequence is, because it is going to be the

           4       subject of quite a lot of evidence.

           5           Can I take you to A12's audio?  This is the second

           6       audio.  We pick it up -- it is paragraph 146 in my

           7       opening.

           8   SIR CHRISTOPHER HOLLAND:  Can I just follow this?  So far,

           9       we have E12's video.

          10   MR UNDERWOOD:  We do.

          11   SIR CHRISTOPHER HOLLAND:  Now, do I gather that there was

          12       another officer using a video camera?

          13   MR UNDERWOOD:  Yes, but this is after the shooting.

          14   SIR CHRISTOPHER HOLLAND:  And because he has got an A, he is

          15       a surveillance officer?

          16   MR UNDERWOOD:  Correct.  And what appears to have happened,

          17       and this appears to be standard practice, is that the

          18       video is set up after an incident such as this, to

          19       capture the scene.

          20   SIR CHRISTOPHER HOLLAND:  Yes.

          21   MR UNDERWOOD:  So as, presumably, to avoid any allegation

          22       that anybody has tampered with the scene.  We have got

          23       that very lengthy video.  We are focusing on only

          24       a short snippet of the audio from it.  I don't need to

          25       play it here.  We have obviously got it available and we


                                            48
 
           1       have expert evidence on it.

           2   SIR CHRISTOPHER HOLLAND:  Yes.

           3   MR UNDERWOOD:  But what I simply want to take you to is the

           4       conflicting expert evidence on that, starting at

           5       paragraph 146.  It is --

           6   SIR CHRISTOPHER HOLLAND:  It is Mr Groninger and Mr Hirson.

           7   MR UNDERWOOD:  Exactly.  Mr Groninger again, at R528.

           8   SIR CHRISTOPHER HOLLAND:  Sorry, just a moment.  Yes.

           9   MR UNDERWOOD:  He starts at 528 and goes over to 529.  It is

          10       the entry to 19.06.  Again, the time codes are not

          11       important.

          12   SIR CHRISTOPHER HOLLAND:  I am sorry.  (Pause).

          13           Sorry, I think I am getting the wrong thing.

          14       Groninger we are looking at, are we?

          15   MR UNDERWOOD:  We are indeed.

          16   SIR CHRISTOPHER HOLLAND:  What page does he start at?

          17   MR UNDERWOOD:  He starts at R528.

          18   SIR CHRISTOPHER HOLLAND:  R?

          19   MR UNDERWOOD:  R528.

          20   SIR CHRISTOPHER HOLLAND:  No, I don't have that.

          21   MR UNDERWOOD:  I am so sorry.  Can I invite you to follow it

          22       on the screen, then, for the moment?

          23   SIR CHRISTOPHER HOLLAND:  Yes, I will do.

          24   MR UNDERWOOD:  Going over to R529; the entry at 19.06.  As

          25       I say, we think this is E1 using a telephone to brief


                                            49
 
           1       the duty inspector, Inspector Cross:

           2           "Trying to ... got there first.  They put an APC

           3       around the vehicle.  Erm, basically they realised

           4       asked/after inform you ... by the (three) bad guys in

           5       the car, erm, and one of my officers fired shots, erm,

           6       as he's seen the rear passenger, erm, probably with

           7       a gun, about to retrieve it.  So basically he's been

           8       shot in situ in the ... in the vehicle, erm, but first

           9       aid ..."

          10           The competing version is Mr Hirson at R524, and it

          11       is the entry just under 28 seconds, "MV1", male voice 1:

          12           "And one of me officers has fired shots, um, as if

          13       some (rear) passenger, um, holding a gun, and that's ...

          14       so basically he's been shot, uh, in situ in the, in the

          15       vehicle."

          16           The importance of that is that we then see, at page

          17       D1765, a decision log.  And this is the decision log of

          18       an inspector, the local borough inspector, Mark

          19       Cunningham, who turned up at the scene to manage it.  He

          20       keeps a log; and he is briefed by that inspector,

          21       Nicky Cross, who E1 had in turn briefed.

          22           If we pick this up at D1767, you see what is called

          23       a SITREP, a situation report.  This is referred to in

          24       paragraph 148 of my opening note.

          25   SIR CHRISTOPHER HOLLAND:  Just one moment.


                                            50
 
           1   MR UNDERWOOD:  So the SITREP at the top:

           2           "Ongoing op: Op Tayport.  Armond [that is Commander

           3       Armond]."

           4           And then there is a DI whose name has been blanked

           5       out.  Project team: SCD(7).

           6           "Today: info, three people in silver Golf doing

           7       drugs ripoff.  TAC advice, vehicle interception called

           8       by control.  Vehicles stopped by SCD(7) officers outside

           9       Railway Tavern public house, Hale Lane NW7, about

          10       19.43 hours.  Hatton rounds are fired into Golf tyres.

          11       Suspects challenged.  Two in front, one rear nearside.

          12       Rear nearside passenger is seen by police to have a gun

          13       in his hand.  Challenged again.  Officer discharged five

          14       rounds to suspect's head."

          15           And then the final two entries:

          16           "Briefed by inspector Nicky Cross, TJ1.  Chief

          17       Inspector Martin Rush."

          18           So if E1 was briefing Inspector Cross that the rear

          19       nearside passenger, Mr Rodney, was seen to have a gun in

          20       his hand, then that is consistent with Inspector Cross

          21       having passed that on here, but of course completely

          22       inconsistent with what E7 says.

          23           There is further corroboration for that possibility

          24       if we move to D5475.  This is paragraph 149 of my

          25       opening note.  And we have already seen Mr Miller, the


                                            51
 
           1       ballistics expert, had been called to the scene, and

           2       here are his notes that he made, having been called.  If

           3       I pick up the -- there are a couple of photocopies that

           4       he took, or a couple of business cards that he took in

           5       the photocopy; and then below that:

           6           "AEM [that is Mr Miller] was told that the victim

           7       had been in the rear of a car being followed by four

           8       police cars.  A hard stop was carried out (contact

           9       between cars).  A gun was seen being brandished by the

          10       man in the rear of the car (described as a fully

          11       automatic weapon) and the police officer in the front

          12       passenger seat of the police car parallel to the

          13       victim's car fired his gun through his wound-down window

          14       into the rear offside door/window of the victim's car."

          15           He then sets out the gun used, the type of

          16       ammunition, et cetera, et cetera.  And you will

          17       obviously have to take a view about how that really

          18       could have been given to that gentleman.

          19           You also get some further material on this at S774.

          20       This is part of Dr Shorrock's post-mortem report.  And

          21       it is the final entry:

          22           "The deceased was lying on his back with his feet

          23       towards the car and his head away.  He was on the

          24       verge."

          25           I am sorry.  I am reading the wrong part of it.


                                            52
 
           1       I should read under "History", in the first paragraph:

           2           "This man and his associates had been under

           3       police surveillance for a period of time.  It is

           4       suspected that they may have been illegally importing

           5       controlled drugs.  On the evening of the 30 April, they

           6       were in a Volkswagen Golf car.  The deceased was in the

           7       rear offside seat.  A hard stop was executed at the end

           8       of Hale Lane.  It appeared that the deceased had a gun

           9       in his hand.  One of the officers is said to have fired

          10       eight shots into the car."

          11           Now, Dr Shorrock was asked very pointedly about that

          12       later on by the IPCC, and he went back to his notes and

          13       he found no reference to that in his notes and, in fact,

          14       in his notes he had written that a gun was found on the

          15       rear seat of the car.  When it was subsequently

          16       examined, it was not in his hand.  But interestingly,

          17       Dr Shorrock was present at the scene when Mr Miller was

          18       being briefed, as we have seen recorded in Mr Miller's

          19       notes.

          20           Moving on, then, to the press coverage of this and

          21       the way it was put into the public domain by the police.

          22       We see -- this is my paragraph 152.  We pick up a press

          23       log, D1044, neatly catalogued, if I may say so.  It is

          24       "bureau info".  And the first entry:

          25           "CAD [that is the computer assisted or aided] states


                                            53
 
           1       police called to Hale Lane, Edgware, at 19.43 this

           2       evening, re a suspect shot by police.  Male suspect

           3       going to hospital.  Two suspects arrested in armed op.

           4       Commander Armond (on-call ACPO) going to liaise with

           5       DI Silver."

           6           If we go over the page to D1047.  Source: Press

           7       Officer Wickers.  22.27.  Report: if asked.

           8           "At approximately 20.00 on Saturday 30/4/05,

           9       a vehicle containing three men was stopped in Hale Lane,

          10       Edgware, in a pre-planned operation by the Specialist

          11       Crime Directorate and SO19.  A man in the backseat of

          12       the car was seen to be in possession of a firearm.  He

          13       was shot by an officer.  LAS [that is the London

          14       Ambulance Service] were called and the man was

          15       pronounced dead at the scene."

          16           And the key phrase, the contentious phrase, there,

          17       of course, is "seen to be in possession of a firearm".

          18           If you go over to D1048, you will see how those

          19       press lines came about.  The entry about a quarter of

          20       the way down the page:

          21           "Bureau info: lines cleared by Commander Armond and

          22       Chief Inspector Martin Rush, who is post-incident

          23       manager."

          24           And then just before the black line action:

          25           "Lines agreed by CPO and SIO bureau APPO, De Vries."


                                            54
 
           1           So that was not loose language.  That was lines

           2       cleared by the commander and chief inspector at the

           3       scene.

           4           Then at D1049, those lines were taken off.  In the

           5       middle section, "Bureau info":

           6           "DCI Tony Evans has asked that we remove the line

           7       'a man in the back seat of a car was seen to be in

           8       possession of a firearm' until officers have been

           9       debriefed.  Lines annotated accordingly, also updated to

          10       show IPCC as having been informed."

          11           As a consequence of the press lines being put out in

          12       the way they were, the press reported that Mr Rodney was

          13       seen to be holding a gun, which may or may not have been

          14       an intentional briefing; and, if so, may have come from

          15       what E7 may have said, as I have shown by that chain.

          16           Can I also show that there was leakage as well?  If

          17       we look at D1062.  6.33 on 2 May:

          18           "Bureau info."

          19           It sets out the text of a Daily Telegraph article:

          20           "Three guns found in car of man shot dead by police.

          21           "Three guns have been recovered from a car in which

          22       a man was shot dead by an armed police officer.  The man

          23       was killed on Saturday night after Scotland Yard

          24       detectives, backed by members of its SO19 armed squad,

          25       launched an operation to arrest three men as they


                                            55
 
           1       travelled by car to meet a Colombian drug dealer.  The

           2       police forensic team were at the scene of the shooting

           3       yesterday.  Detectives from the Metropolitan Police

           4       Serious Crime Directorate believed that they planned to

           5       rob the Colombian, a rival, of drugs and money and

           6       possibly to kidnap him.

           7           "The incident was one of a number in London at the

           8       weekend, which showed that gun crime is still

           9       a significant problem in the capital.

          10           "A car containing three black men was stopped in

          11       Hale Lane, Edgware, North London, at around 8 pm on

          12       Saturday and officers in a police vehicle to tried to

          13       shoot its tyres to prevent it escaping.  At the same

          14       time, sources said that a man in the rear was seen to be

          15       "making a move' which was thought to be reaching for

          16       a gun.  One officer -- said to be an experienced

          17       'specialist firearms officer', the most highly trained

          18       members of SO19 -- opened fire.  It is said the officers

          19       feared that the man posed a threat to their lives.  It

          20       is thought that up to eight shots were fired, some of

          21       which shattered the window of the suspects' car and that

          22       three hit the man, who was in his 20s, in the head.  The

          23       other two men in the car were unharmed and are under

          24       arrest."

          25           So that is the way in which, after the events, the


                                            56
 
           1       information got out.

           2           And all that remains is that I show you what the

           3       IPCC concluded and what the CPS concluded, which I can

           4       do quite briefly.  As I have said --

           5   SIR CHRISTOPHER HOLLAND:  Can I hold you to "quite briefly"?

           6       We would normally have a break.

           7   MR UNDERWOOD:  I will take a couple of minutes, if I may.

           8           Just picking up the IPCC at D2605 and this is my

           9       paragraph 174.  D2605 and 606 set out the introduction.

          10           D2631, and I won't go to it, sets out the fact that

          11       some intelligence was seen.  And we can then go to the

          12       conclusions which start at D3184.

          13           And you can see that "points of law" are picked up:

          14           "The actions of officer E7, Gold commander, Silver

          15       commander and Bronze commander are all going to be

          16       investigated."

          17           And then perhaps most importantly, at D3188, at

          18       paragraph 3.1.5.1, "Use of force":

          19           "It is my assessment that Rodney, Lovell and Graham

          20       were involved in serious criminal activity.  They were

          21       in possession of three firearms and ammunition.  E7 and

          22       the other members of the firearms team believed they

          23       were involved in arresting an armed and dangerous gang

          24       involved in high level drug dealing.  The account given

          25       by E7 and his colleagues is consistent and is supported


                                            57
 
           1       by the evidence of other witnesses and the available

           2       forensic and video evidence.  I believe that given the

           3       level of perceived threat, E7 acted properly and in

           4       accordance with his training.  E7 fired the number of

           5       rounds he did, as he believed that the threat was still

           6       present, and he continued to fire until he was satisfied

           7       his colleagues were no longer at risk."

           8           That is obviously based on the statement E7 gave.

           9       You may take the view, contrasting that statement with

          10       the scientific evidence, that the statement is wrong and

          11       if you do, that will shed a lot of light on the outcome

          12       of that report.  But as I said yesterday, you are

          13       obviously going to be basing --

          14   SIR CHRISTOPHER HOLLAND:  Well, they were reporting on the

          15       basis of the evidence that they had acquired.  I am

          16       going to be reporting on the basis of the evidence that

          17       I hear in this room; with the aid, that they didn't

          18       have, of submissions from counsel.

          19   MR UNDERWOOD:  Just so.

          20           And finally, then, the CPS took the same route, and

          21       the CPS conclusion will be subject to the same point.

          22   SIR CHRISTOPHER HOLLAND:  Not surprising.

          23   MR UNDERWOOD:  But for simple reference sake, D2590 is where

          24       one would find the CPS conclusion, which echos that of

          25       the IPCC.


                                            58
 
           1           So that, then, is as far as I wish to go in opening

           2       the materials.

           3   SIR CHRISTOPHER HOLLAND:  Well, it is 11.35.  I would like

           4       to rise for quarter of an hour.  In quarter of an hour,

           5       you can tell me what is going to happen next.

           6   MR UNDERWOOD:  Certainly.

           7   (11.35 am)

           8                         (A short break)

           9   (12.02 pm)

          10   MR UNDERWOOD:  Sir, can I just introduce this next issue?

          11   SIR CHRISTOPHER HOLLAND:  Yes.

          12   MR UNDERWOOD:  Subject to any ruling which you will make, or

          13       you may make, my team will upload all materials referred

          14       to in open session in this Inquiry onto the Inquiry

          15       website; and they will do that as soon as is

          16       practicable.

          17           As you know, the MPS is now seeking a ruling from

          18       you, which does make some exception to that; and I will

          19       invite, in a moment, Ms Studd to make that application.

          20           But before I do, may I just introduce my learned

          21       friend Catrin Evans, who appears to object to the

          22       application on behalf of the BBC, ITN, BSkyB, Guardian

          23       News and Media Limited and Times Newspapers Limited?

          24   SIR CHRISTOPHER HOLLAND:  Well, yes.  But just before you

          25       sit down, can I just follow what is happening?


                                            59
 
           1           You have been opening it to me.  Now, what has gone

           2       onto the website thus far from your opening?

           3   MR UNDERWOOD:  The audio feed of the opening and my written

           4       opening itself.

           5   SIR CHRISTOPHER HOLLAND:  Now, what about the documents and

           6       exhibits that you have shown me?

           7   MR UNDERWOOD:  Nothing so far, because we were given warning

           8       of this application yesterday.

           9   SIR CHRISTOPHER HOLLAND:  Yes.  Well, leave aside the

          10       warning.  I mean, let there -- I am just trying to get

          11       the picture.  Had there been no warning, what would you

          12       have put on the website?

          13   MR UNDERWOOD:  Everything I referred to yesterday and which

          14       was seen by everybody here.

          15   SIR CHRISTOPHER HOLLAND:  I mean, even part documents

          16       and ...?

          17   MR UNDERWOOD:  Yes.

          18   SIR CHRISTOPHER HOLLAND:  So at the moment, anybody

          19       following this, by way of a website, has your words,

          20       mine such as they are, and that is it?

          21   MR UNDERWOOD:  Yes.

          22   SIR CHRISTOPHER HOLLAND:  Now, again, just before we move

          23       on.  When we get to the evidence, what do you propose to

          24       do about that, in terms of the website?  What is going

          25       to happen?


                                            60
 
           1   MR UNDERWOOD:  A transcript, of course, of the daily events

           2       will be placed on the website and all documents referred

           3       to during the course of that day's events will be placed

           4       on the website in full.

           5   SIR CHRISTOPHER HOLLAND:  Yes.  So let's test it.  Let's

           6       suppose that E1 is giving evidence.  He has made

           7       a statement.  Now, what happens to that statement?

           8   MR UNDERWOOD:  That is uploaded.

           9   SIR CHRISTOPHER HOLLAND:  So that is uploaded; and then the

          10       oral ...?

          11   MR UNDERWOOD:  Yes.

          12   SIR CHRISTOPHER HOLLAND:  But it isn't uploaded, in the case

          13       of E1 or any witness, until they come to give evidence?

          14   MR UNDERWOOD:  That's correct.

          15   SIR CHRISTOPHER HOLLAND:  So the significance of the problem

          16       at the moment is that in opening, you were, as it were,

          17       giving advance notice of what witnesses might be

          18       producing?

          19   MR UNDERWOOD:  Correct.  Although in the case of, for

          20       example, E12's video, no witness will be producing --

          21   SIR CHRISTOPHER HOLLAND:  Well, I have that very much in

          22       mind.  But anyway, I am now -- I may come back to you,

          23       now that I think I understand the facts.

          24           Now, just help me.  What --

          25


                                            61
 
           1                     Submissions by MS STUDD

           2   MS STUDD:  Sir, in respect of the statements.  Of course, if

           3       Mr Underwood's current position is maintained, then the

           4       part of E7's statement will be put on the website,

           5       because it was referred to this morning in his opening.

           6   SIR CHRISTOPHER HOLLAND:  Yes.

           7   MS STUDD:  And it would just be that part of it, and not the

           8       whole statement.

           9   SIR CHRISTOPHER HOLLAND:  Yes.

          10   MS STUDD:  So when he says it won't be until a witness give

          11       evidence that the statements will go onto the website,

          12       actually that does not appear to be the position.  The

          13       position is that every document and every exhibit he has

          14       referred to thus far will be placed on the website, as

          15       it has been seen by us.

          16   SIR CHRISTOPHER HOLLAND:  Yes.

          17   MS STUDD:  And it seems to the Metropolitan Police that,

          18       actually, that illustrates the potential problem;

          19       because it is not right or fair that part of the

          20       evidence that may be called will be put onto the website

          21       now, before it has actually been given.

          22   SIR CHRISTOPHER HOLLAND:  Yes.

          23   MS STUDD:  And undoubtedly permit comment upon that part of

          24       the evidence, when the whole picture is not in the

          25       public domain.


                                            62
 
           1   SIR CHRISTOPHER HOLLAND:  Yes.

           2   MS STUDD:  So my submissions, and I hope you have seen my

           3       written submissions --

           4   SIR CHRISTOPHER HOLLAND:  I have.

           5   MS STUDD:  I am not proposing to go through them in full.

           6       But my submission is that the evidence should go onto

           7       the website, obviously, at the time that it is given; so

           8       that the commentators have the whole picture before

           9       them, to make their comment.

          10           If I can give an example.  It may be that there is

          11       some considerable dispute about Mr Miller's opinion.

          12   SIR CHRISTOPHER HOLLAND:  Yes.

          13   MS STUDD:  If that material is uploaded today, it is frankly

          14       inconceivable that there won't be some media comment

          15       about that evidence, for the public to assimilate; and

          16       those conclusions may be reached that actually, in the

          17       fullness of time, prove to be inaccurate.  I am not

          18       saying they will, but they may be.

          19           And it is going to be very difficult for this

          20       Inquiry's conclusions to effectively supersede the

          21       conclusions that have been reached on Day 1 of the

          22       Inquiry, on the basis of partial material which has not

          23       been the subject of any examination whatever, but has

          24       been uploaded onto the website because it has been part

          25       of the opening.  Therein lies the concern.


                                            63
 
           1           So far as the video is concerned, E12 produces the

           2       video.  It is his video.  He took it --

           3   SIR CHRISTOPHER HOLLAND:  Well, yes.  What advantage is

           4       there?  I mean, you can't have everybody hanging --

           5       I mean, I have your point about the other.

           6           But E12's video -- E12 will no doubt say "I did it"

           7       and that is the end of that.  Why do we have to wait for

           8       E12 to say what is common ground?

           9   MS STUDD:  Well, he could be asked to produce it at

          10       an earlier stage in the Inquiry, actually, and he does

          11       not need to be left for five weeks, or whatever it is,

          12       to --

          13   SIR CHRISTOPHER HOLLAND:  Well, he has nothing to say about

          14       it, has he?

          15   MS STUDD:  Well, he may want to say something about the

          16       commentary that appears on it.  You will be aware, no

          17       doubt, from reading the press, that it has been

          18       suggested in the press that the words "Sweet as, sweet

          19       as" come after the shots have been fired.

          20   SIR CHRISTOPHER HOLLAND:  Yes.

          21   MS STUDD:  On proper analysis, that is not correct.

          22   SIR CHRISTOPHER HOLLAND:  Yes.

          23   MS STUDD:  Now, if that video is uploaded for people to pass

          24       comment, there is a very real possibility of inaccurate

          25       comment being made on the video; before E12 has been in


                                            64
 
           1       the position to tell you, sir, how it came into

           2       existence and what appears on it and what he was saying

           3       on it and what it meant.

           4   SIR CHRISTOPHER HOLLAND:  Yes.

           5   MS STUDD:  If you, sir, reach a different conclusion to the

           6       conclusion that has been reached by the public, as

           7       a result of them listening to and taking note of comment

           8       upon it, then again, the integrity and the fairness of

           9       your Inquiry is damaged.

          10           In general terms, evidence is produced and made

          11       public at the point when a witness gives the evidence.

          12   SIR CHRISTOPHER HOLLAND:  Yes.

          13   MS STUDD:  Not at a point when a case is opened.  In

          14       other jurisdictions -- and I recognise that a public

          15       inquiry is slightly different -- but in other

          16       jurisdictions, a video of criminal activity would be

          17       broadcast, sometimes at the conclusion of the criminal

          18       case, because of juries being influenced; but certainly

          19       not as a result of a prosecution opening.  And the

          20       analogy with that remains here.

          21   SIR CHRISTOPHER HOLLAND:  Yes.

          22   MS STUDD:  It is a concern.

          23           I need to make it completely clear.  I am, and the

          24       Metropolitan Police Service is, alive to the need for

          25       open justice.


                                            65
 
           1   SIR CHRISTOPHER HOLLAND:  Yes.

           2   MS STUDD:  And there is no suggestion here that this video,

           3       if that is the part of this that you are most concerned

           4       with, should be withheld from public consumption.

           5           The Metropolitan Police Service, as I am sure all

           6       the core participants here, recognise, that all the

           7       material which is placed before you, whether in advance

           8       or read in, should be open to public scrutiny.  And that

           9       is why people have spent many, many, many hours making

          10       sure that documentation is in a form --

          11   SIR CHRISTOPHER HOLLAND:  Yes, I entirely agree.

          12   MS STUDD:  -- that can be open to public scrutiny.

          13   SIR CHRISTOPHER HOLLAND:  You have heard me pay tribute to

          14       that.

          15   MS STUDD:  So there is no issue about that at all.

          16           The only question is whether here, media comment,

          17       social commentators, Twitter -- whatever it may be --

          18       will cause the public to reach conclusions that are, in

          19       the long run, potentially inaccurate.  And if that is

          20       a risk, and the Metropolitan Police think it may well

          21       be, it will be very difficult for your Inquiry to

          22       retrieve the position and put the balance back into

          23       place.

          24   SIR CHRISTOPHER HOLLAND:  Thank you very much, Ms Studd.

          25


                                            66
 
           1                     Submissions by MS EVANS

           2   MS EVANS:  Sir, first of all, may I just express the

           3       gratitude of the media parties that I represent --

           4   SIR CHRISTOPHER HOLLAND:  Not at all.

           5   MS EVANS:  -- for allowing them to make representations?  It

           6       has been, I am afraid, at rather short notice; hence the

           7       fact that I could not get you my submissions until just

           8       before you came in, sir.

           9   SIR CHRISTOPHER HOLLAND:  You need not apologise.

          10   MS EVANS:  The position is slightly clearer, I am able to

          11       say, having heard what my learned friend has just said

          12       about the scope of the objection.  I am going to come

          13       back to what appears to be a wider objection than that,

          14       which is actually particularised in the submissions of

          15       the Metropolitan Police.

          16           But I think it is fair just to make the point that

          17       insofar as the media parties, if I can call them

          18       "parties", are concerned today, the principal focus has

          19       been on what I will call the visual aid material --

          20       videos, images and so forth -- which have been deployed

          21       in the opening of counsel to the Inquiry both yesterday

          22       and today which include, as I understand it, the E12

          23       video, of course, but also stills and photographs of the

          24       inside of the car containing Mr Rodney when he was shot;

          25       graphics apparently produced by the Inquiry team, as


                                            67
 
           1       I understand it, showing the trajectory of the bullets

           2       and a reconstruction video which has been produced, as

           3       I understand, by the Inquiry using actors to demonstrate

           4       aspects of the events in question.

           5           Those four specific categories I have listed in

           6       paragraph 7 of my submissions as being the ones which it

           7       was understood by the media that the police were going

           8       to object to being uploaded shortly after, or during or

           9       shortly after, the opening speech had been made.  Now it

          10       turns out it is a wider one.  I would like to come back,

          11       if I may, to the wider aspects of it in a moment.

          12           Dealing with that video footage, the first point to

          13       make about it is, of course, that if you like, it is too

          14       late to shut the door once the horse has bolted; by

          15       which, of course, I mean that much of the material which

          16       I have just described is already in the public domain,

          17       at least by description.

          18           But more importantly, it was actually played in open

          19       session yesterday, of course, with members of the public

          20       lawfully here and able to see it, including, of course,

          21       journalists who then went away, produced the reports

          22       containing the descriptions; and I attached to my

          23       submissions a schedule of --

          24   SIR CHRISTOPHER HOLLAND:  You have.

          25   MS EVANS:  -- what I would call a myriad of reports from the


                                            68
 
           1       opening yesterday, which no doubt will continue today.

           2           Those reports, and I don't need to go to them,

           3       I think, but those reports, sir, you will be aware, have

           4       gone into quite a bit of detail in reporting on counsel

           5       to the Inquiry's opening speech, including descriptions

           6       of what can be seen on the video.

           7           By itself, therefore, in my submission, it becomes

           8       somewhat of a red herring to suggest that that visual

           9       image material cannot be uploaded onto the site.  It is

          10       too late.  There is no case being made to distinguish

          11       between the quality of the images themselves and any

          12       descriptions of them; and of course, that couldn't

          13       possibly be the case, since, as I said just now, the

          14       decision was taken by the Inquiry and the Inquiry team

          15       to play the video to the public in court.

          16           So the only distinction that could possibly be made,

          17       which would be one worthy of any contemplation by you,

          18       sir, would be if there were any material difference

          19       between the right of access of the public in this room

          20       and the right of access of the public out there, who

          21       couldn't be here.  And in my respectful submission, that

          22       is a distinction without a difference; that it is not

          23       possible to draw it.

          24           Now, the backdrop to this, of course, which I know,

          25       sir, you are very familiar with, in light of your


                                            69
 
           1       previous judgment in relation to anonymity rulings, is

           2       of course the principle of openness; and the corollary

           3       of that being the principle of access to the information

           4       that the Inquiry generates and adduces in open session.

           5           The threshold, as you know, sir, for restricting the

           6       openness in which this Inquiry is sitting is a high one;

           7       and sir, that is something that you held in your

           8       judgment, which then went to the High Court on the

           9       judicial review which was unsuccessfully brought by the

          10       police applicants in that case; in which the High Court

          11       approved of your formulation, sir, as to the need to

          12       achieve a public characteristic or a public foundation

          13       for this Inquiry.

          14           The backdrop to that, of course, is the extreme high

          15       importance of the subject matter of this Inquiry, which

          16       I don't need to repeat.  It is self-evident that where

          17       a citizen has been killed during a police operation and

          18       the government has seen fit to set up an Inquiry in

          19       public, that citizens are going to want to follow and be

          20       entitled to follow what comes out of it.

          21           The statute itself which governs and creates your

          22       powers, sir, of course, is the 2005 Act which itself in

          23       section 1 stipulates that the case must be one which

          24       raises a matter of public concern in the first place in

          25       order for it to be set up.  And in section 18, it makes


                                            70
 
           1       clear that the default option, if you like, is that the

           2       Inquiry will sit in public.  It also makes clear that as

           3       much public access to material generated will be made as

           4       is possible to be achieved.

           5           The only possible restrictions on that are ones

           6       which arise under section 19, sir, as you know; and, in

           7       particular, can be brought within the particular factors

           8       in subsection 4.  And it may be appropriate to look at

           9       that at this stage.  It is noticeable that the

          10       application of the Metropolitan Police has not actually

          11       specified any particular factors relied on in

          12       section 19.4, which we say is simply because there

          13       aren't any that could be relied on respectably in this

          14       argument.

          15           The starting point in section 19 is subsection 3,

          16       which says that:

          17           "A restriction notice or a restriction order must

          18       [so it is mandatory] specify only such restrictions [and

          19       the first one is not relevant] as the chairman considers

          20       to be conducive to the Inquiry fulfilling its terms of

          21       reference or to be necessary in the public interest,

          22       having regard in particular to the matters mentioned in

          23       subsection 4."

          24           Now, that rubric about "conduciveness to fulfilling

          25       the terms of reference" is touched upon in the


                                            71
 
           1       Metropolitan Police's submissions in general, but is not

           2       then supported by any particulars.

           3           In particular, as I said, none of those in 4 which

           4       are:

           5           "The extent to which any restriction on attendance,

           6       disclosure or publication might inhibit the allaying of

           7       the very public concern which has led to the Inquiry

           8       being set up.

           9           "Any risk of harm or damage that could be avoided or

          10       reduced by any such restriction."

          11           Any conditions as to confidentiality, subject to

          12       which a person acquired information that he is to give

          13       or has given to the Inquiry."

          14           Just pausing there, there is no suggestion of any

          15       confidentiality in play, insofar as the visual materials

          16       are concerned or, indeed, insofar as any other material

          17       is concerned that has been specified.

          18           "(d).  The extent to which not imposing any

          19       particular restriction would be likely to cause delay or

          20       to impair the efficiency or effectiveness of the Inquiry

          21       or otherwise result in additional costs."

          22           And those don't appear to have been impliedly relied

          23       on either.

          24           Now, subsection 5 actually seeks to define, to some

          25       extent, although not exhaustively, the definition for


                                            72
 
           1       "Harm or damage" and it says that it includes:

           2           "Death or injury, damage to national security or

           3       international relations, damage to the economic

           4       interests of the United Kingdom, damage caused by

           5       disclosure of commercially sensitive information."

           6           And again, I pause to observe that none of those are

           7       relied on by the Metropolitan Police in its application

           8       as being a justification for the restriction.

           9           Sir, as you know, in the situation where the

          10       presumption of openness is a high one -- and here we

          11       would say it is particularly high, given that it is not

          12       only found in the common law, but also in the statute

          13       itself -- the requirement for cogent justification for

          14       deviations from that principle of openness could not be

          15       higher.  And in my submission, it would also require, in

          16       a proper application, the supply of evidence which has

          17       not occurred here either.

          18           So that backdrop of the principle of openness is

          19       absolutely critical, and I think it is important just to

          20       stress that it does not put any burden on the public or

          21       the media to say why they should be allowed access to

          22       material which has been referred to in open court.  That

          23       is the default position.

          24           The burden is on the applicant, in this case the

          25       police, to show why that restriction should be made.


                                            73
 
           1           So in the round, in relation to the visual

           2       materials, we say that there are no cogent grounds

           3       whatsoever for delaying the uploading of the material

           4       onto the Inquiry's website; all the more so, given the

           5       backdrop of the concern about delays in this Inquiry and

           6       the suspicion, no doubt by some members of the public,

           7       that previously, prior to the Inquiry being set up, lots

           8       of questions remained to be answered about the behaviour

           9       of various institutions and so forth.

          10           Allaying those concerns can only effectively be

          11       achieved by the fullest possible exposure.

          12           Now, I will come back to the point which I said

          13       I would come back to, which has become somewhat more

          14       illuminated during my learned friend's submissions, and

          15       that relates to the wider nature of this request.  It

          16       now seems to be being said that the objection to the

          17       uploading of material onto the website or the making of

          18       it accessible to the public extends to everything until

          19       it has been adduced by a particular witness in his or

          20       her evidence.

          21           Now, the first thing to observe is that that does

          22       not take account of the common law position, insofar as

          23       access to documents is concerned, and that is to be

          24       found in the case which I have referred to in my

          25       skeleton, which is a Court of Appeal decision known as


                                            74
 
           1       the "Tesler case".

           2           It is the Crown on the application of Guardian News

           3       and Media v City of Westminster Magistrates' Court which

           4       was a judicial review in relation to an extradition

           5       proceeding in the Magistrates' Court, where the Guardian

           6       newspaper had applied for access to documents, which the

           7       magistrate had had provided to her by the parties in the

           8       extradition, and which had been referred to in open

           9       court, but not read out in open court; and she had

          10       refused the request for access to them.

          11           The judicial review had failed and that went to the

          12       Court of Appeal, who found for the newspaper and said

          13       that they should have been provided with the documents.

          14           The relevance of it -- and I did pass a copy of the

          15       decision up which I hope, sir, you have.

          16   SIR CHRISTOPHER HOLLAND:  Yes, I do.

          17   MS EVANS:  It is possible to take it from the headnote.  The

          18       starting point is at headnote number 9, which says that:

          19           "The default position should be that access to

          20       documents which have been placed before a judge and

          21       referred to in the course of proceedings would be

          22       permitted and the case for allowing access was

          23       particularly strong where it was sought for a proper

          24       journalistic purpose."

          25   SIR CHRISTOPHER HOLLAND:  Well, now, let's see if I can't


                                            75
 
           1       help you, because I honestly think this is, although not

           2       necessarily easy, it is a much shorter problem.

           3           What Ms Studd has pointed out is that what

           4       Mr Underwood proposes to do with respect to the

           5       evidence, once it is called, I think, is common ground.

           6       That is, a witness comes, produces a witness report --

           7       a witness statement.  That is put in and uploaded, as

           8       well as anything oral that is adduced from that witness.

           9           When that happens, the website benefits and the

          10       press, if they want to report on it, report on it.

          11           Thus far, I don't think there is anything between

          12       anybody.

          13           Now, the problem that has arisen is that in his

          14       opening, Mr Underwood has provided us with excerpts from

          15       statements, documents; and the critical question is as

          16       to whether those should be uploaded, notwithstanding

          17       they are excerpts and not the full picture.

          18           Now, that is the problem and that is why I have

          19       distinguished the E12 video, because arguably that is

          20       the full Monty.  That is all that E12 produces.  You

          21       know, there isn't a question of it being a half-baked

          22       offering.

          23   MS EVANS:  I think what is important to focus on, however,

          24       if I may say so, in relation to that submission by the

          25       Metropolitan Police, is the end product.  Why is it they


                                            76
 
           1       are making that submission?  The submission is made

           2       ostensibly because there is a concern on their part that

           3       inaccurate, as she calls it, media reports, based on

           4       partial selections, could unduly damage this Inquiry's

           5       outcome.

           6   SIR CHRISTOPHER HOLLAND:  Well, there is a concern over E7's

           7       statement, which I am concerned about.  Now, perfectly

           8       properly, Mr Underwood has put part of it in.

           9           Now, one of the directions I have given in this case

          10       is that it should not be relied upon when he comes to

          11       give evidence.  I want him to give evidence orally, as

          12       it would be in a criminal case; and the last thing

          13       I want arguably is a bit of his written statement going

          14       in at this stage.

          15   MS EVANS:  Well --

          16   SIR CHRISTOPHER HOLLAND:  I don't fault Mr Underwood, but it

          17       never occurred to me that they would make it public and

          18       go on a website, and that those representing E7 would

          19       find themselves a bit startled.

          20   MS EVANS:  I understand, sir, that point.  I don't, of

          21       course, myself know anything about the background.

          22   SIR CHRISTOPHER HOLLAND:  Well, I am telling you what the

          23       background is.

          24   MS EVANS:  And if I may say so: it may be that, in fact, it

          25       has to be Mr Underwood that addresses that part of it,


                                            77
 
           1       because he is, of course, aware of any documents which

           2       may cause particular difficulties in the balancing

           3       exercise.

           4           From the point of view of the media, the position

           5       is, as I was just explaining, in relation to the common

           6       law -- which is of course binding upon you, sir, because

           7       that particular case I referred to applies to all

           8       tribunals, it makes that clear -- is that once

           9       a document has been adduced in open court, it doesn't

          10       matter whether it is during the course of giving

          11       evidence or whether it is in submissions --

          12   SIR CHRISTOPHER HOLLAND:  Well, it does matter, because we

          13       have only had a taster so far.  We haven't had the full

          14       document.

          15   MS EVANS:  That is why I say, sir, that the questions about

          16       whether particular witness statements cause particular

          17       problems have to be addressed first of all, if I may say

          18       so, with quite a lot of specificity on the part of the

          19       Metropolitan Police as to what the problems in that

          20       witness statement are, which, as far as I am aware, have

          21       not been produced for the argument this morning.

          22           They then have to be dealt with by counsel to the

          23       Inquiry, as to whether there is any grounds for them or

          24       not.

          25           But it isn't correct to approach it in a broadbrush


                                            78
 
           1       fashion, which is what the Metropolitan Police is

           2       encouraging you, sir, to do, where you simply say: there

           3       is a concern about bits of documents going onto the

           4       website.

           5   SIR CHRISTOPHER HOLLAND:  Yes.

           6   MS EVANS:  Now, I quite accept there may be a problem with

           7       E7, I have no idea.  But equally, there may be other

           8       extracts which have been referred to, which have been

           9       selected to illustrate a point, where there's no

          10       possible question of any prejudice --

          11   SIR CHRISTOPHER HOLLAND:  Save that it is an extract.

          12       I mean, you have put your finger on the problem.

          13   MS EVANS:  But it comes back to the question, the point that

          14       I raised just now --

          15   SIR CHRISTOPHER HOLLAND:  That is why I would invite you to

          16       focus on E12, which isn't an extract.

          17   MS EVANS:  That is why I made the point just now, sir, which

          18       is that you have to look at what the Metropolitan

          19       Police's end point is here.

          20   SIR CHRISTOPHER HOLLAND:  I am not so bothered about that.

          21       I am bothered about what is conducive to the conduct of

          22       this Inquiry, because you have very rightly drawn my

          23       attention to section 19 and I am explaining a problem

          24       that I see from my point of view, happily drawn to my

          25       attention by Ms Studd.


                                            79
 
           1   MS EVANS:  The point I am making is that in order to

           2       disentangle the problem, not only is it going to be

           3       necessary, in my respectful submission, to look at any

           4       of the specific extracted bits which are of concern,

           5       rather than dealing with it in the round; but it is

           6       necessary to focus on what the concern is.  Because as

           7       I hear Ms Studd's submission, this is a concern about

           8       the reputation of officers.  That is why she keeps

           9       talking about inaccuracy.

          10           And just to quote what she said, she said that her

          11       concern was that the public -- that putting it up on the

          12       website, in extract form, would cause the public to

          13       reach conclusions in the long run that are inaccurate.

          14   SIR CHRISTOPHER HOLLAND:  Yes.

          15   MS EVANS:  Well, why does that matter, I ask rhetorically,

          16       given that, sir, it is your function, and only your

          17       function, to make the findings ...?

          18   SIR CHRISTOPHER HOLLAND:  Because it may not be fair to the

          19       witness; that is why.  Why should the witness have the

          20       ground taken from under their feet by Mr Underwood, with

          21       the best of intentions, but for ought he knows, wrongly?

          22       I want to hear the witness, don't I?

          23   MS EVANS:  That is the problem, sir, with the lack of

          24       specifics, because at the moment there is just a general

          25       statement that witnesses might feel pressured because


                                            80
 
           1       there might be inaccurate statements in the press.  But

           2       that is the reality in any court proceeding, sir, as you

           3       know.

           4   SIR CHRISTOPHER HOLLAND:  I have tipped you the wink that

           5       you might focus on the E12 video, because it does not

           6       have the objections that I have been -- it is a thing of

           7       its whole and it is not an extract.

           8   MS EVANS:  Well, I take your point about that.  But as far

           9       as --

          10   SIR CHRISTOPHER HOLLAND:  And it is what the press focused

          11       on overnight; so there may be people egging you on.

          12   MS EVANS:  But the reality is that E12, from the point of

          13       view of the starting principle of openness, is not to be

          14       treated any differently from any of the others.

          15   SIR CHRISTOPHER HOLLAND:  Except that it isn't an extract.

          16   MS EVANS:  Well, the question of extracts has to then be

          17       addressed when you balance competing interests.  And

          18       that is why there needs to be specifics and each one

          19       needs to be looked at.

          20   SIR CHRISTOPHER HOLLAND:  Well, you have given me all the

          21       help you can, Ms Evans, and I am grateful to you.

          22           Mr Thomas, do you have anything to say on this or do

          23       you just ...?

          24                     Submissions by MR THOMAS

          25   MR THOMAS:  I do, actually.


                                            81
 
           1   SIR CHRISTOPHER HOLLAND:  Yes.

           2   MR THOMAS:  Do I need to address you in relation to the E12

           3       video?

           4   SIR CHRISTOPHER HOLLAND:  Well --

           5   MR THOMAS:  Because in relation to the E12 video, I think

           6       that should be uploaded and the public saw it yesterday.

           7   SIR CHRISTOPHER HOLLAND:  Exactly.  I don't think you need

           8       say more about the E12 video.  But what about the other

           9       extracts?

          10   MR THOMAS:  Well, there is a difficulty; and the problem is

          11       this in relation to the other extracts.

          12           Firstly, as I understand the objection currently, it

          13       is in relation to -- let's just look at the extracts

          14       from E7's statement that were read out this morning.

          15   SIR CHRISTOPHER HOLLAND:  Yes.

          16   MR THOMAS:  Isn't there a practical difficulty here, which

          17       places you in a problematic situation?

          18           Is it being suggested that the media who, as far as

          19       I can understand it, can rightly and properly report the

          20       proceedings which have taken place today.  The extracts

          21       have been read out.  No objection was made --

          22   SIR CHRISTOPHER HOLLAND:  Yes.

          23   MR THOMAS:  -- before the extracts have been read out.  And

          24       sir, could I make this clear.  Mr Underwood gave

          25       everybody, a phrase I like to use, the "heads-up".


                                            82
 
           1   SIR CHRISTOPHER HOLLAND:  Yes.

           2   MR THOMAS:  In relation to what he was going to be saying in

           3       his opening, because he distributed his opening to

           4       everybody.

           5   SIR CHRISTOPHER HOLLAND:  He did.

           6   MR THOMAS:  And in his opening, he gave reference to the

           7       documents that he was going to be taking everybody to;

           8       and that was done, I think, about a week ago.

           9   SIR CHRISTOPHER HOLLAND:  Yes.

          10   MR THOMAS:  And there was no objection taken by the other

          11       core participants in relation to parts of those

          12       documents being read out, as Mr Underwood quite clearly

          13       indicated that that was what he was going to do.

          14           So we come to the problem.  What has been suggested

          15       is that those parts of the extracts should be uploaded

          16       on the website.  I ask myself rhetorically, sir, and

          17       this is what I ask you to grapple with: what is the

          18       difference between those documents being uploaded on the

          19       website, as compared to those documents being reported

          20       in the media, as the media has an entitlement to do, it

          21       having been opened?

          22           And if, sir, I am right that the media can perfectly

          23       properly say, "Well, it was reported today, Mr Underwood

          24       QC said and read out X, Y and Z", what difference does

          25       it make if the media reports it in that way or on the


                                            83
 
           1       website?

           2   SIR CHRISTOPHER HOLLAND:  Yes.

           3   MR THOMAS:  That is the problem.  It is a practical one.

           4           And so I say: if this was an issue that there was

           5       likely to have been objection to it, in the manner that

           6       has been suggested, we should have had this debate

           7       before Mr Underwood opened.

           8   SIR CHRISTOPHER HOLLAND:  Yes.

           9   MR THOMAS:  Horses, bolts, stable doors; whatever analysis

          10       you want to use.

          11   SIR CHRISTOPHER HOLLAND:  I have your image.

          12   MR THOMAS:  It is too late.

          13   SIR CHRISTOPHER HOLLAND:  Thank you.

          14           Ms Leek?

          15                      Submissions by MS LEEK

          16   MS LEEK:  Sir, as I understand it, this is not a matter of

          17       restriction on disclosure.  This is purely a matter of

          18       timing --

          19   SIR CHRISTOPHER HOLLAND:  Yes, I agree.

          20   MS LEEK:  -- in order to ensure fairness to witnesses and

          21       core participants.

          22           Sir, why do the press say that it is in the public

          23       interest for documentary and witness evidence to be put

          24       in the public domain, before it is adduced in evidence,

          25       with an explanation by the maker of the document or the


                                            84
 
           1       person who can properly comment on it?

           2           We have not been given any explanation whatsoever as

           3       to why that is in the public interest.

           4           Sir, I support my learned friend Ms Studd's

           5       submission, particularly in relation to the uploading of

           6       partial extracts from documents.

           7           If I may just deal briefly with the issue of E7.

           8       I do recognise that Mr Underwood has opened some of what

           9       E7 said about what happened on the night.

          10   SIR CHRISTOPHER HOLLAND:  Yes.

          11   MS LEEK:  I tend not to object to openings, unless it is

          12       absolutely critical.

          13   SIR CHRISTOPHER HOLLAND:  Yes.

          14   MS LEEK:  However, E7 prepared an evidence and actions book;

          15       and E7 prepared a number of statements after the partial

          16       statement which was referred to by Mr Underwood.  None

          17       of that has been opened.

          18           The further statements were at the request of the

          19       Inquiry, particularly so that E7 could clarify matters

          20       that he had set out in his initial statement.

          21           Now, none of that will be uploaded.  You don't yet

          22       know what E7 is going to say in his oral evidence about

          23       that.

          24   SIR CHRISTOPHER HOLLAND:  No, I don't.

          25   MS LEEK:  You don't yet know what E7 is going to say about


                                            85
 
           1       the partial reconstruction.  And it has been called

           2       a "partial reconstruction".  It was created as a partial

           3       reconstruction, without the involvement of E7, without

           4       the comment of E7, and without asking him at any point

           5       if, in fact, it reflected what he thought he saw.

           6           So it is for those reasons that it is obvious that

           7       there would be unfairness to E7, were a partial extract

           8       to be uploaded.

           9           I take Mr Thomas's point about what has been

          10       referred to in opening.  There is nothing we can do

          11       about that now.  But it is the principle in relation to

          12       all of the witnesses, and I simply use E7 to illustrate

          13       that.

          14   SIR CHRISTOPHER HOLLAND:  Yes.

          15   MS LEEK:  May I also refer briefly to the issue of

          16       Mr Miller?  Mr Miller, again an extract of whose report

          17       you heard this morning, has made a number of reports

          18       initially for the IPCC and more recently for the

          19       Inquiry.  He has, in some of those reports, given

          20       different accounts as to the trajectory of a particular

          21       bullet as it went into Mr Rodney.  That wasn't dealt

          22       with in opening this morning; nor did Mr Underwood deal

          23       with the different reasons that were given for the

          24       appearance of the entry wounds.

          25           Again, not only is it unfair to Mr Miller partially


                                            86
 
           1       to report what he has said, but it is also unfair to E7,

           2       because obviously what Mr Miller says reflects directly

           3       on E7.

           4           Sir, those are just two examples of exactly how the

           5       suggested or proposed course of action will result in

           6       gross unfairness to witnesses who haven't yet had

           7       an opportunity to comment on the documentation.

           8           Again, I ask rhetorically: exactly how can it be in

           9       the public interest to produce documentary evidence

          10       which has not yet been given in evidence, when this is

          11       really just a matter of timing?

          12   SIR CHRISTOPHER HOLLAND:  Mr Collery?

          13   MR COLLERY:  No.  I think others -- Ms Studd's task and

          14       remit is broader than Her Majesty's Revenue & Customs.

          15       The statements of S1 and S2 are not to be uploaded.

          16       Were they to be, I might have different concerns, but

          17       they are not --

          18   SIR CHRISTOPHER HOLLAND:  You don't have any submissions?

          19   MR COLLERY:  I don't have any submissions.

          20   SIR CHRISTOPHER HOLLAND:  Yes.

          21           Mr Underwood, anything more you want to say?

          22                Reply submissions by MR UNDERWOOD

          23   MR UNDERWOOD:  Can I just crystallise our position?

          24           We, too, would start with sections 1 and 18 of the

          25       Inquiries Act which set one imperative, and we would


                                            87
 
           1       then go on to Article 2 which sets another supporting

           2       imperative.  Article 2, in its investigative phase, is

           3       an obligation of means, not outcome.  It is as important

           4       that the investigation be seen to be fair, thorough,

           5       et cetera --

           6   SIR CHRISTOPHER HOLLAND:  Yes.

           7   MR UNDERWOOD:  -- as to arrive at "fair, thorough,

           8       et cetera" conclusions.

           9           So those are the starting points.  I go from there

          10       to, I am sorry to say, a failure of understanding of

          11       exactly what is being asked for here.  It now appears

          12       that what was overnight to be objected to, namely E12's

          13       video, does not seem to give rise to any difficulties,

          14       because that is a freestanding complete document.

          15   SIR CHRISTOPHER HOLLAND:  Well, that is rather -- that is my

          16       spin.

          17   MR UNDERWOOD:  Sir, what we now move on to is that some, and

          18       I have no idea which, other documents which may or may

          19       not be partial should not be uploaded.  Query: at what

          20       stage?  So for example, I call witness number 2 to whom

          21       I put a page of witness number 16's witness statement

          22       given in 2005.  Does the objection mean that that

          23       witness statement cannot be uploaded, despite the fact

          24       that it will form part of the transcript of the evidence

          25       of that first witness?


                                            88
 
           1           It is inevitable, in the course of an Inquiry which

           2       is going to continue for some weeks, that evidence is

           3       going to come out in stages.  Partial documents will be

           4       put to witnesses.

           5           Now, the answer to this is that what will follow

           6       after your ruling is that other core participants will

           7       make their opening statements; documents that they wish

           8       to refer to, if they wish to redress what they perceive

           9       to be an imbalance, will be uploaded.

          10           If there is simply a difficulty with me having

          11       referred to a part and not all of a document, so that

          12       I didn't, for example, put in a date or whatever it may

          13       be, then of course it can be resolved by your ordering

          14       that every part of every document I refer to be

          15       uploaded.

          16           So it is very difficult to understand the scope and

          17       the practical effect of the application at the moment;

          18       and if and insofar as there is a real objection to it,

          19       it can be dealt with by the openings of others.

          20           But in any event, the real difficulty perceived in

          21       the application is going to persist in any event,

          22       because of the way in which evidence unfolds.

          23           And that is why, no doubt, the leading case referred

          24       to by Ms Evans, setting out the open -- sorry, the

          25       common law position, is that as soon as anything is


                                            89
 
           1       referred to in court, at whatever stage, be it in

           2       an opening or in a witness statement or in the course of

           3       oral evidence, that becomes public knowledge.

           4           And we respectfully suggest that in the context of

           5       a public inquiry, particularly an Article 2 public

           6       inquiry, that that should be the guiding light.

           7   SIR CHRISTOPHER HOLLAND:  Well, thank you, Mr Underwood.

           8           It is coming up to 12.45.  If I give a ruling at

           9       2 o'clock; all right?

          10   MS STUDD:  Sir, just before you rise, can I just answer some

          11       of the objections that have been made?

          12   SIR CHRISTOPHER HOLLAND:  Oh certainly, sorry.  I should

          13       have given you ...

          14                  Reply submissions by MS STUDD

          15   MS STUDD:  Just dealing with the case of Tesler.  Of course,

          16       Tesler is rather different, because the District Judge

          17       had given judgment in Tesler.  An application had been

          18       made for the documents that had been referred to.  The

          19       hearing was, in effect, concluded; and she refused

          20       access to the material.

          21           Well, the equivalent of that here is that we get to

          22       the conclusion of these lengthy oral hearings; and you

          23       refuse access to the press of the material that has been

          24       referred to.  That is not sought by anybody.

          25           So from the point of view of Tesler, I don't think


                                            90
 
           1       there is any suggestion by anybody here that access

           2       should not be given to the wider public to the material,

           3       as it is presented into the Inquiry.

           4           So far as Mr Thomas's objections are concerned, for

           5       the core participants' part, it was not anticipated,

           6       maybe wrongly, by any of the core participants that

           7       partial documents would be uploaded as a result of being

           8       mentioned in the opening, or even that E12's video would

           9       be uploaded as a result of it being mentioned in the

          10       opening, until very late last week when we were notified

          11       of such.

          12           Had we taken objection to every document being

          13       referred to, then frankly Mr Underwood wouldn't have had

          14       an opening.  So that is unrealistic.

          15           You, sir, have a power to control your own

          16       proceedings and to provide any restriction that you

          17       think is necessary, in order to assist your Inquiry and

          18       ensure that your Inquiry is effective.  As I said

          19       earlier, my concern is fundamentally that there will be

          20       pre-judging of the evidence before it is given.  And

          21       that extends to the pre-judging of Mr Rodney, if the

          22       parts of the CRIS report that were referred to are put

          23       up on the website; in my view, on behalf of the

          24       Metropolitan Police Service, wholly inappropriate,

          25       because it would be wrong, as Mr Thomas indicated


                                            91
 
           1       yesterday, to pre-judge him.

           2           So for all those reasons, I would stand by my

           3       submissions that you, sir, should put some limited

           4       restriction in accordance with that, very similar to

           5       that provided by Lord Justice Leveson in the

           6       Leveson Inquiry; that evidence becomes public at the

           7       time that it is produced.

           8           The alternative is that all of the documentation is

           9       uploaded simultaneously.

          10   SIR CHRISTOPHER HOLLAND:  Forthwith.  Well, thank you very

          11       much indeed.  As I say, 2 o'clock.

          12   MR THOMAS:  Sir, just before you do rise, can I hand up just

          13       one document, because there is another application this

          14       afternoon.  It is a case that you are familiar with,

          15       because I have referred to it before, and I am going to

          16       be -- so you can have a look at it over lunch.

          17       (Handed).

          18   (12.48 pm)

          19                     (The short adjournment)

          20   (2.00 pm)

          21                              Ruling

          22   SIR CHRISTOPHER HOLLAND:  I have a ruling to make.  This

          23       ruling necessarily reflects certain provisions of the

          24       Inquiries Act 2005 pursuant to which this inquiry was

          25       set up.


                                            92
 
           1           The sections that are currently germane are sections

           2       18 and 19.  So far as material, section 18 reads:

           3           "(1) Subject to any restrictions imposed by notice

           4       or order under section 19, the chairman must take such

           5       steps as he considers reasonable to secure that members

           6       of the public (including reporters) are able.

           7           (a) to attend the inquiry or to see and hear a

           8       simultaneous transmission of the proceedings at the

           9       inquiry;

          10           (b) to obtain or to view a record of evidence and

          11       documents given, produced or provided to the inquiry or

          12       inquiry panel."

          13           Section 19(1) provides that:

          14           "Restrictions may, in accordance with this section,

          15       be imposed on -

          16           ...

          17           (b) disclosure or publication of any evidence of

          18       documents given, produced or provided to an inquiry."

          19           Subsection (2) tells me that I can impose the

          20       restrictions by way of a restriction order and then,

          21       when I turn to subsection (3), I find:

          22           "A restriction order must specify only such

          23       restrictions -

          24           ...

          25           (b) as the chairman considers to be conducive to the


                                            93
 
           1       inquiry fulfilling its terms of reference or to be

           2       necessary in the public interest, having regard in

           3       particular to the matters mentioned in subsection (4)."

           4           At the moment, I need read no further.

           5           The problem of course with ruling is essentially

           6       21st century.  It is common ground that, as and when I

           7       start to take evidence, each witness, save two, will

           8       produce his or her witness statement, will be orally

           9       examined on it and possibly cross-examined.  The

          10       resultant evidential package will be uploaded on to the

          11       inquiry website.

          12           Subject to one point raised by Mr Underwood to which

          13       I will return, thus far no issue arises.

          14           Yesterday and this morning, however, Mr Underwood

          15       opened the inquiry opened with his address.  As

          16       Mr Thomas reminds me, he circulated an advanced copy of

          17       that address and served to show that he was to make

          18       citations, some partial, some whole, from parts of what

          19       he saw as the prospective evidence.  Thus he put before

          20       us in the course of his opening video material,

          21       photographic material, extracts from contemporary

          22       documents, extracts from the reports and an extract from

          23       the first statement made by the officer E7.

          24           All that reflected, understandably, Mr Underwood's

          25       personal selection, that which he thought appropriate to


                                            94
 
           1       put forward to explain to me and to the public as a

           2       whole the background to this inquiry, to identify the

           3       issues, to identify the evidence that bear upon the

           4       issues.  The citations that he made inevitably amounted

           5       in many instances to extracts from a whole.  It would

           6       have been wholly against anybody's interest for him to

           7       read out the full document, to take me to every part of

           8       it.  What he did was to exercise his professional skill

           9       in culling from the documents, from the photographs,

          10       that which would serve to give an overall picture to me

          11       and the public as a whole.

          12           All that he had foreshadowed by circulating the copy

          13       of his statement beforehand.  In the event, he made many

          14       of the citations thus foreshadowed.  Some he either

          15       curtailed or left out in order to bring his address to

          16       an acceptable length.

          17           The present intention of the inquiry team, as led by

          18       Mr Underwood, is to upload all that, that is all that he

          19       has said by way of opening, together with the extracts.

          20       All such be put on the inquiry website.

          21           On behalf of the Metropolitan Police, Ms Studd QC

          22       objects to uploading so much as is constituted by what I

          23       will call compendious citations.  She points out that

          24       anybody who is familiar with court procedure would find

          25       the notion of, as it were, recording for posterity that


                                            95
 
           1       which had featured in the opening address unusual or

           2       exceptional.  But her main point is that this is

           3       potentially unfair to the witnesses, who in due course

           4       will be called upon to flesh out and prove that which

           5       has been cited by Mr Underwood.  She points, for

           6       example, to the reports of experts.  He has cited part

           7       of such.  She points out that, in the event, when the

           8       expert is called, it will not be just that part, it will

           9       the full report that the expert will be putting before

          10       me and proving.  Turning to photographs, she is able to

          11       say that we have seen some photographs, we have not seen

          12       them all.  Turning to the reconstruction, we have seen

          13       part of it, we have not seen all of it.  Turning to the

          14       statement of E7, she points out that again we have

          15       simply seen part of the first statement that he made.

          16       She emphasises that, if this material comes in at this

          17       stage without any accompanying evidential support, then

          18       matters may, as it were, be put down for posterity

          19       unfairly: for example, the alleged criminal offending of

          20       Mr Rodney.  Her submission is that there should be no

          21       such uploading until it becomes the subject of evidence

          22       in the ordinary way.

          23           That submission was supported by Ms Leek QC for E7,

          24       who underlined the position of her client, pointing out

          25       that, although we had seen and heard part of his first


                                            96
 
           1       statement, there had been subsequent statements and

           2       there is the irony that my own direction is that when he

           3       comes to give evidence he should do so in response

           4       totally orally, in response to questions, without

           5       reliance on past statements and so that this crucial

           6       witness will be providing evidence in the classic way

           7       for a matter of some real importance such as this.

           8           The submissions of Ms Studd were otherwise

           9       unopposed.  Mr Thomas pointed out it was all a bit late,

          10       given the efforts that Mr Underwood had made, to give

          11       advance notice and crucially it was imposed by Ms Evans

          12       on behalf of various media interests.  Her theme has to

          13       be based on section 18.  Her essential point is this:

          14       Mr Underwood has put all this matter before this public

          15       hearing, the press have seen it, the press have seen on

          16       the screens what he has produced, it is all a bit late

          17       and wrong to deprive the website of that which would be

          18       uploaded and that is to provide a point of reference for

          19       the media for the citations made by Mr Underwood.  Why,

          20       she submits, should this not proceed in the usual way.

          21           Mr Underwood for his part obviously maintains that

          22       the extracts were clearly identified in advance to the

          23       core participants and points out further that the

          24       problem that is said to arise is going to arise again as

          25       and when the evidence gets underway because witnesses


                                            97
 
           1       will be invited to look at extracts from reports,

           2       extracts of the nature that I have called the citations,

           3       and being asked to comment on them, perhaps in advance

           4       of witnesses who will in due course ultimately prove the

           5       whole.  In short, the problem that is been identified

           6       now is not going to go away as and when the evidence

           7       starts.

           8           For my part, I place emphasis on that passage in

           9       section 19 about is the inquiry fulfilling its terms of

          10       reference.  My primary concern are the witnesses.  I

          11       want them each to give evidence on equal footing, in no

          12       way hampered by earlier partial disclosure.  A fortiori,

          13       if that has resulted in prior public debate, I want each

          14       witness to be in a position to put before me their full

          15       testimony as a whole as perceived by them so that it is

          16       then uploaded as such.

          17           I hold that the section 18 obligations are amply

          18       fulfilled by the procedure that will be adopted as and

          19       when the evidence commences.  I hold that the section 18

          20       obligation do not justify prior publication by uploading

          21       of those pieces of evidence as was cited with the best

          22       of intentions by Mr Underwood, such, incidentally, being

          23       understandably less in number and extent as originally

          24       foreshadowed.  I say understandably: Mr Underwood

          25       sensibly trimmed the content for the occasion.


                                            98
 
           1           Since the citations and the resultant extracts were

           2       partial and subjectively selected, there is a real risk

           3       that the public, lacking the full picture, will draw a

           4       premature conclusion tending to undermine a witness'

           5       response to the demands of this inquiry.  The strongest

           6       example is the citation from E7's first statement.  I

           7       have drawn attention to the submissions of Ms Leek QC.

           8       In my judgment, they were well made.

           9           Thus it is overall I rule in favour of Ms Studd's

          10       submission.  I rule that there will be a restriction on

          11       the uploading of citations made by Mr Underwood in his

          12       opening.

          13           As to Mr Underwood's point about the citations

          14       utilised in the course of giving evidence, I propose to

          15       await the occasion.  It may well be that, when that

          16       arises, my ruling will have to be perforce different,

          17       but I shall be making it in a different circumstance and

          18       against a different background.

          19           Now, I have used the word overall.  I am going to

          20       make an exception.  Mr Underwood cited the video made by

          21       E12 and he showed it to us in what I would describe as a

          22       raw state, that is without any overlay by experts.  The

          23       crucial feature about this is it is whole.  It is not an

          24       extract, it is a whole thing.  It stands for itself.  It

          25       is difficult to imagine what, if anything, E12 can say


                                            99
 
           1       as and when he produces other than that is the video my

           2       camera produced.  There is no doubt that it is a subject

           3       of considerable media interest.  It is referred to

           4       overnight in many sources, understandably, if I may say

           5       so.  I see no reason to have that part of the

           6       restriction that I am imposing, as Ms Studd asked.  That

           7       I regard as a perfectly proper exception for the reason

           8       I have indicated: it is whole and it does not turn upon

           9       the oral evidence of any witness.

          10

          11   MR THOMAS:  Sir, can I just seek some clarity in relation to

          12       the order you've just made?

          13   SIR CHRISTOPHER HOLLAND:  Yes.

          14   MR THOMAS:  In terms of the restriction order you've made.

          15   SIR CHRISTOPHER HOLLAND:  Yes.

          16   MR THOMAS:  I'm a little unclear in my own head.  It may

          17       just be me.  In relation to the parts of Mr Underwood's

          18       opening where he referred to extracts from E7's first

          19       statement.

          20   SIR CHRISTOPHER HOLLAND:  Yes.

          21   MR THOMAS:  Now, I understand what you say about not

          22       uploading that on to the web.

          23   SIR CHRISTOPHER HOLLAND:  Yes.

          24   MR THOMAS:  Does your order go further than that?

          25   SIR CHRISTOPHER HOLLAND:  Well, I don't think I'm asked to


                                           100
 
           1       take it further, am I?

           2   MR THOMAS:  That's all I ask.

           3   SIR CHRISTOPHER HOLLAND:  I mean -- I'm sorry, you've lost

           4       me.

           5   MR THOMAS:  No.  You clarified --

           6   SIR CHRISTOPHER HOLLAND:  The current problem, Ms Studd

           7       says, "look, he's made this speech, he's included these

           8       citations.  By all means put the speech up."  It's the

           9       citations they're bothered about, because they're

          10       partial.

          11   MR THOMAS:  So Mr Underwood's opening can go up?

          12   SIR CHRISTOPHER HOLLAND:  Well, so far as I'm concerned.  I

          13       can't think there's any objection to that, is there?

          14       No.  Well, there couldn't be.  My inquiry team is

          15       wincing because they've got a problem, but they will

          16       have to sort that out.

          17   MR THOMAS:  No, the only reason why I asked is because I

          18       touched upon the practical difficulty earlier on about

          19       stables, doors, bolting, and parts of it have already

          20       been reported.

          21   SIR CHRISTOPHER HOLLAND:  I appreciate that.  I can't undo

          22       it and I'm not proposing to undo it.  All I'm proposing

          23       to do is to give a fair playing field for future

          24       witnesses.  That's all I'm trying to do.

          25   MR THOMAS:  So you can understand why I asked for clarity.


                                           101
 
           1   SIR CHRISTOPHER HOLLAND:  Yes, indeed.  Indeed Mr Thomas.

           2           Well, Mr Underwood, are you still speaking to me?

           3   MR UNDERWOOD:  Forgive me.  Of course.   (Pause).

           4           So, there are -- for the sake of all concerned, to

           5       follow up what Mr Thomas asked, so I can clarify what

           6       are not consequences of that.  May I put three things?

           7           Firstly, that the live audio feed which is uploaded

           8       on to the website as we go along is unaffected by this.

           9       Secondly, the daily transcripts of what is said, which

          10       will be uploaded the day following events, is unaffected

          11       by this.  Thirdly, reportage by the press of what they

          12       hear in the chamber in the adjoining room and on the

          13       website again is unaffected by this as I understand.

          14   SIR CHRISTOPHER HOLLAND:  That's my understanding and I

          15       don't think Ms Studd raises any query about that.  The

          16       answer is yes.

          17   MR UNDERWOOD:  Thank you very much.  That resolves that

          18       issue.

          19

          20   MS EVANS:  Sir, may I just raise one point procedurally?

          21   SIR CHRISTOPHER HOLLAND:  Yes.

          22   MS EVANS:  It would actually be of great assistance to the

          23       media, bearing in mind this will affect all media, not

          24       just those that I represent today, to have you, sir,

          25       draw up the order in a form which is actually one that's


                                           102
 
           1       capable of being circulated in the usual way.  I'm sure,

           2       sir, that's what you would do.

           3   SIR CHRISTOPHER HOLLAND:  Yes.

           4   MS EVANS:  The only point I would make about it is there is

           5       some urgency about it, simply because there has been a

           6       lot of interest, as you know, already, and any lack of

           7       clarity at all would obviously be cleared up by the

           8       words in writing.

           9   SIR CHRISTOPHER HOLLAND:  Well, if I rise, perhaps you can

          10       have a word with Mr Underwood and Ms Studd and see what

          11       can be produced.

          12   MS EVANS:  Yes, sir.

          13   SIR CHRISTOPHER HOLLAND:  Wouldn't that be the sensible

          14       thing to do?

          15   MS EVANS:  Yes, sir.  Thank you.

          16   (2.22 pm)

          17                         (A short break)

          18   (2.30 pm)

          19   MR UNDERWOOD:  Sir, we've agreed I'll draw up a ruling for

          20       your signature at the end of today.  So there's no hurry

          21       about that.

          22   SIR CHRISTOPHER HOLLAND:  Yes.

          23                      Procedural submissions

          24   MR UNDERWOOD:  The only matter, before others make their

          25       opening addresses, is the question of whether my notes,


                                           103
 
           1       in advance of questions I'm likely to ask witnesses

           2       about, should go only to the legal teams or whether the

           3       legal teams can pass them on to their clients, who may

           4       be witnesses, and can I just set out our position on

           5       this?

           6           When I wrote a note to all counsel a week or so ago,

           7       I set it out what I was proposing to do and the purpose

           8       of that, which is to set the ball rolling, to ensure

           9       that I'm put on notice of any questions I should

          10       reasonably be asking that I haven't thought of and also

          11       to try and identify what else it is that others may wish

          12       to ask that I don't. And the question arose in the

          13       course of that whether clients could be shown it and my

          14       instinct was openness is being as transparent as

          15       possible and I have no difficulty with those questions

          16       going to witnesses and that's the context in which this

          17       application arises by Mr Thomas.

          18   SIR CHRISTOPHER HOLLAND:  Yes.  You don't happen to have an

          19       example of one?  I haven't seen --

          20   MS STUDD:  I've got one.

          21   SIR CHRISTOPHER HOLLAND:  Could I see one?  I only just want

          22       to see what I'm talking about.

          23   MR UNDERWOOD:  I take it it's not going to be uploaded.

          24   SIR CHRISTOPHER HOLLAND:  Touché. (Handed).  Just give me

          25       one moment.   (Pause).


                                           104
 
           1           Yes.  Yes, Mr Thomas.

           2   MR THOMAS:  Sir.  Well, there is strong objection to the

           3       approach and can I set out what the objection is?

           4   SIR CHRISTOPHER HOLLAND:  Do.

           5   MR THOMAS:  Firstly, just so our position is clear, we have

           6       no problem or difficulty with the intended purpose

           7       behind Mr Underwood distributing his questions to the

           8       legal teams.  The rationale behind that was sound,

           9       namely to ensure that areas were covered and whether

          10       there were additional areas which Mr Underwood may have

          11       missed.  So no problem with that at all.

          12           The issue is whether or not those questions should

          13       go on to the actual witnesses themselves and we object

          14       to that and our reasons are as follows.

          15           The fact is, sir, that the inquiry team has already

          16       given witnesses the main themes.  There can be no

          17       suggestion that there is unfairness or witnesses are

          18       being taken by surprise.  I believe it was back in June

          19       of this year, Mr Underwood's team drew up a list of

          20       thematic issues which went to all the legal teams and

          21       indeed to the witnesses.  So what we have here is it's

          22       going further and providing witnesses with specific and

          23       detailed questions and we say that there's every reason

          24       why the witnesses should not be given that.

          25           Detailed questions to be provided to the witnesses


                                           105
 
           1       encourages the whole concept of coaching, false

           2       preparation of evidence which may not be a witness' true

           3       account.  In this inquiry, you want, we say, to achieve

           4       the best evidence.  You want to avoid collusion or

           5       indeed the appearance of collusion.  We say that what

           6       Mr Underwood's suggested practice will do will be to run

           7       the risk that witnesses will discuss how to answer those

           8       detailed questions.  You just won't know.

           9           This inquiry, sir, is meant to replace the inquest

          10       because there was difficulty in relation to holding the

          11       inquest because of in relation to sensitive material or

          12       other potentially secret evidence.  I remind this

          13       inquiry of the fact that the coroner felt that he could

          14       not hold an Article 2 compliant inquest.

          15           The terms of reference of this inquiry are similar

          16       to the legal requirements of an inquest.  Essentially,

          17       in setting up this inquiry, the Government wanted the

          18       core participants to in effect obtain or approximately

          19       obtain the same quality of justice that they would have

          20       had had this been an inquest, admittedly by a different

          21       legal process.

          22           In an inquest, sir -- and I challenge anybody

          23       here -- I know of no inquest in a death in custody where

          24       witnesses are provided in advance with the coroner's

          25       detailed questions so they can prepare and rehearse


                                           106
 
           1       their answers.  To do so, sir, is farcical.  In any

           2       search for the truth, where there is the potential for

           3       conflicts of questions in terms of answers provided, one

           4       would wish to test the evidence, particularly from

           5       groups of witnesses.  You don't flag up your questions

           6       in advance.

           7           Yes, I accept that the witnesses should not be

           8       treated unfairly and therefore thematically the

           9       witnesses should be given -- again that expression I

          10       like to use -- the heads up in relation to potential

          11       areas.  But Mr Underwood has done that.  You know, there

          12       is the potential for the witnesses, because there's no

          13       restriction on the witnesses, to sit down with each

          14       other and discuss those detailed questions and the

          15       answers they might give.  This practice does not happen

          16       at inquests for obvious reasons.  There's no reason why

          17       it should happen at this inquiry because it is an

          18       obvious barrier to getting to the truth.

          19           There would be a risk of contamination.  There would

          20       be a risk of collusion.  There would be a risk of

          21       coaching.  Yet it is proposed that this practice or

          22       suggested practice happen here.

          23           In effect, sir, the main core participant who is

          24       likely to suffer from this is the mother of the

          25       deceased, Susan Alexander.  She is the one who's


                                           107
 
           1       disadvantaged, because this decision affects her in a

           2       disproportionate way because it was her son who was

           3       killed by the police, and it is the witnesses, namely

           4       the witnesses for the state, who can only reap the

           5       benefit from this process of seeing the detailed

           6       questions in advance.  In effect, sir, Susan Alexander

           7       is the one who will get less justice if this process is

           8       allowed to happen.  This inquiry would be less

           9       transparent than she would get in an ordinary domestic

          10       inquest, let alone an inquiry which is meant to be

          11       Article 2 compliant.  That cannot be right.

          12           The suggested process is flawed.  It's opaque, it's

          13       unfair and, if allowed to continue, it will mean that

          14       this inquiry will fail to meet the standards of an

          15       Article 2 compliant hearing.  This hearing, if this

          16       process is allowed to happen, risks simply providing lip

          17       service to the European Convention on Human Rights and

          18       it will in effect make your efforts at trying to get to

          19       the truth a real struggle.

          20           Sir, you saw the authority I handed up, the case of

          21       Sanders.  It's an authority which we touched upon before

          22       when we looked at your decision earlier on to allow the

          23       police officers in this case to hear and not be excluded

          24       from hearing each other's evidence.  You've made that

          25       decision, I don't seek to go behind that decision.


                                           108
 
           1       That's a decision that is now in the past.

           2           But what is now being asked is, not only should the

           3       police officers in this case be able to sit in and hear

           4       each other's evidence, but they should know the

           5       questions in advance that they're likely to be asked.

           6       Well, sir, why don't we just therefore say, tell you

           7       what, write in your answers?  What's the point of this

           8       hearing?

           9   SIR CHRISTOPHER HOLLAND:  Now, look, can we just get this

          10       down.  I've just seen, the only one I have seen, is that

          11       which was prepared for --

          12   MR THOMAS:  South.

          13   SIR CHRISTOPHER HOLLAND:  South, Detective Superintendent

          14       South.

          15           Now, so far that has been applied to Ms Studd.  Now,

          16       do you object to that?  I mean, is it the whole process

          17       you object to or do you object to Ms Studd passing it

          18       on?

          19   MR THOMAS:  Yes.  Sir, just so you understand what the

          20       position is, Mr Underwood has circulated the questions

          21       in relation to the officers this week.

          22   SIR CHRISTOPHER HOLLAND:  Yes.

          23   MR THOMAS:  Right, who are on the schedule for this week.

          24       The other witnesses who were yet to come, we haven't had

          25       Mr Underwood's questions yet.  So it's this week's


                                           109
 
           1       officers.

           2           In relation to S1 and S2, who are the first two

           3       witnesses who are likely to be affected by this process,

           4       the chronology is this.  Those questions were circulated

           5       last week and towards the end of last week -- I believe

           6       it was either Wednesday or Thursday, I can't remember

           7     which day now -- Ms Studd quite properly raised the question

           8       is this for the advocates alone or can these questions

           9       be passed on to the clients, lay clients.

          10   SIR CHRISTOPHER HOLLAND:  Yes.

          11   MR THOMAS:  I immediately responded to that question, when

          12       Ms Studd raised it, objecting and saying that would be

          13       coaching, we need to discuss this.

          14           Unfortunately, HM Customs had already distributed

          15       the questions to S1 and S2.  So those officers, those

          16       two officers, those first two witnesses, have seen it.

          17       Do you remember what I was saying on about stables,

          18       bolts, horses, can't do anything about that.  That's

          19       happened.

          20   SIR CHRISTOPHER HOLLAND:  I do indeed.

          21   MR THOMAS:  But, in relation to the other witnesses,

          22       Ms Studd quite properly said that she would not hand on

          23       the questions until this had been resolved.  I gave an

          24       indication that I would be speaking with my legal team

          25       on Friday.  We discussed it and we said that we'd raise


                                           110
 
           1       it at the beginning of the inquiry.  So that's where

           2       we're at.  So, sir --

           3   SIR CHRISTOPHER HOLLAND:  I wonder if I could just -- could

           4       I have the questions back.  I'm sorry, I prematurely

           5       returned them.  Thank you, Ms Studd.

           6   MS LEEK:  Sir, perhaps it might assist to have a copy of the

           7       preparation for witnesses S1 and S2 as well.

           8   SIR CHRISTOPHER HOLLAND:  Right.  Okay.  Thank you.

           9       (Handed).

          10           Sorry, could you just give me one moment while I

          11       just read --

          12   MR THOMAS:  Yes, of course.  (Pause).

          13   SIR CHRISTOPHER HOLLAND:  Yes.

          14   MR THOMAS:  Sir.  Again, can I make it clear: I don't have a

          15       problem with these questions being circulated amongst

          16       the legal teams.  It's obviously sensible to ensure that

          17       your inquiry runs as efficiently and as smoothly as

          18       possible.  Right?  I could understand the good sense in

          19       that.  The question is whether or not the witnesses

          20       should be given the specific and detailed questions.

          21       You've seen a couple of examples.

          22           We say that they shouldn't and can I just take you

          23       to a couple of passages, just to illustrate the point.

          24       Sending out counsel's questions gives rise to the risk,

          25       sir, that the officers will confer on how best to answer


                                           111
 
           1       these questions.  I'm not suggesting that they will

           2       necessarily do it with the lawyers, but amongst

           3       themselves.  There's no restriction on them and it's

           4       something, sir, that you would not be able to police in

           5       any event.  Where you have the risk, and I say a real

           6       risk, of contamination, conferring, collusion, that is

           7       outwith an Article 2 compliant inquest and, sir, can I

           8       draw your attention to the following.  I'm not going to

           9       read these passages out, but can I draw your attention

          10       to the following passages in Sanders: paragraphs 13, 19,

          11       37, 38 and 40.

          12   SIR CHRISTOPHER HOLLAND:  Yes.

          13   MR THOMAS:  And, sir, we say, you know, you don't have to

          14       show that the officers will confer.  If there is a risk

          15       of conferring, that is sufficient to breach Article 2,

          16       and we say the only purpose behind giving these

          17       questions is to give the officers an opportunity to

          18       prepare in advance their answers.

          19   SIR CHRISTOPHER HOLLAND:  Well, I don't think -- I have your

          20       point.  I don't think anybody could -- it puts it very

          21       high to say that's the overall purpose.  Your best point

          22       is it may have a better purpose, but there's a risk that

          23       flows from a good intention.

          24   MR THOMAS:  So be it.

          25   SIR CHRISTOPHER HOLLAND:  But that, I think, gives more


                                           112
 
           1       strength to what you're saying.  I mean, this isn't an

           2       attempt by Mr Underwood to undermine your client.  But

           3       it is, so far as I can see, and I shall hear from him,

           4       an attempt to deal with the odd situation that arises

           5       that he's going to have to call these witnesses, which

           6       he wouldn't normally do, and he's trying to indicate

           7       what he's going to be saying to them.  I agree with you,

           8       when you look at the questions, most of them are

           9       perfectly straightforward, but some might invite, if

          10       they're communicated down to the person concerned, some,

          11       as it were, prior preparation.

          12   MR THOMAS:  Absolutely.  Sir, can I make it clear: I don't

          13       have a problem with witnesses being told, well, look,

          14       you need to look at this particular document or you need

          15       to have this document in mind, but it's some of the

          16       specific questions which are objectionable, because, as

          17       you put it, sir, it may invite the risk.  It may be an

          18       unintended consequence of witnesses colluding,

          19       preparing, however you want to put it, and that is

          20       outwith an Article 2 compliant hearing.

          21   SIR CHRISTOPHER HOLLAND:  You see, again, I'll ask

          22       Mr Underwood, I may be guessing, but I think one of the

          23       things that he maybe had in mind is whether, if he

          24       indicates the scope that he's going to engage in, that

          25       then leaves open the question of whether there's going


                                           113
 
           1       to be any cross-examination -- no, if I can just

           2       finish -- given my ruling that the cross-examination

           3       should be on a topic not covered by Mr Underwood.  Do

           4       you follow me?

           5   MR THOMAS:  Sir, I understand that, but --

           6   SIR CHRISTOPHER HOLLAND:  Mr Underwood may say that's not

           7       the point, but it does lurk in the background.

           8   MR THOMAS:  Sir, I understand that, but you don't answer

           9       that by giving the questions to the witnesses.  You do

          10       that by what I've already conceded, circulating the

          11       questions to the lawyers.

          12   SIR CHRISTOPHER HOLLAND:  Yes.  Well, I do see that.  I do

          13       see that.

          14   MR THOMAS:  And we don't have any objection to lawyers

          15       seeing the questions.  Sir, can I again make the point

          16       that, in terms of fairness to the witnesses,

          17       Mr Underwood's team have already flagged up a list of

          18       thematic things.  That was done in June.

          19   SIR CHRISTOPHER HOLLAND:  Yes.  I have that point.

          20   MR THOMAS:  Sir, unless I can assist you any further, those

          21       are my submissions.

          22   (2.56 pm)

          23   SIR CHRISTOPHER HOLLAND:  I'll come to you last,

          24       Mr Underwood, if I may, Ms Studd, do you have anything

          25       to say about this?


                                           114
 
           1   MS STUDD:  No. Well, I do have one thing that I want to just

           2       make an observation about.  My only concern was that

           3       everybody knew what the playing field looked like and

           4       everybody was in agreement with it.  I just say this,

           5       that I know Mr Beer QC, who appeared on behalf of the

           6       Metropolitan Police Service before me, raised with you,

           7       sir, the issue of warning letters, and that, if there's

           8       going to be serious criticism of any individual, then a

           9       warning letter should be provided under Rule 13 before

          10       this inquiry makes that criticism.

          11           What I understood the position to be is that part of

          12       the delivery of this material might help to give the

          13       witness some idea of where the criticism was going to be

          14       of their individual conduct.  If that was the intention

          15       of the inquiry team, then one should look it in the

          16       round of Rule 13.  But I have no strong views either way

          17       as to whether or not --

          18   SIR CHRISTOPHER HOLLAND:  Just taking your own position, and

          19       I don't know if you can help me, you've had the

          20       questions relating to Superintendent South.  Have you

          21       actually consulted with him yet or is this --

          22   MS STUDD:  No, I have consulted with him but I haven't

          23       provided him with those questions, because I thought it

          24       was important.

          25   SIR CHRISTOPHER HOLLAND:  That's helpful.


                                           115
 
           1   MS STUDD:  The documents sent out by Mr Underwood weren't

           2       entirely clear whether it was my professional client or

           3       the officer who was in charge of this inquiry or whether

           4       it was the individual.  So I wanted to ensure that we

           5       all knew what was intended before anything was sent to

           6       him.

           7   SIR CHRISTOPHER HOLLAND:  Well, thank you very much.

           8   MS LEEK:  Sir, may I add to that?

           9           E7's position is that all too often police officers

          10       come into the witness box and are accused of

          11       collaboration and collusion.  He is very keen to come to

          12       the inquiry and give his evidence freely and he is very

          13       keen to avoid any suggestion of collaboration or

          14       collusion.  So, when I received the list of questions,

          15       albeit those weren't for E7, it hadn't occurred to me in

          16       truth that these were questions that might be passed on

          17       to individual witnesses, that they were purely for the

          18       assistance of counsel, so that we between us could work

          19       out who was going to ask which questions.

          20   SIR CHRISTOPHER HOLLAND:  Exactly.

          21   MS LEEK:  I've now looked at the list of questions for S1,

          22       S2 and the other witnesses and I would be extremely

          23       reluctant to pass on to my client, given his particular

          24       circumstances, any list of questions which was going to

          25       be asked of him in the witness box, in order to avoid


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           1       any question that he and I might have discussed it

           2       beforehand or that he and any other officer might have

           3       discussed it beforehand.

           4   SIR CHRISTOPHER HOLLAND:  That's very helpful.

           5   MS LEEK:  Thank you. Yes, Mr Collery.

           6   MR COLLERY:  Perhaps I can just deal with the position of S1

           7       and S2.  We received these from the inquiry, I think, on

           8       the 28th, on the morning of the 28th last week.  It was

           9       made clear to HM Revenue and Customs that in fact

          10       Mr Underwood would like S1 and S2 to see the witness

          11       preparation documents.

          12           As my learned friend says, it depends on the

          13       circumstances.  The circumstances were here, of course,

          14       that Mr Underwood was calling, as we've heard, two

          15       intelligence officers for the first time in a public

          16       inquiry.  It is in relation to sensitive matters.  They

          17       are being shown documents that many of them, we can see

          18       from this, are not their own documents, in fact,

          19       documents they will have never seen before.

          20           Revenue and Customs are very keen that this is an

          21       effective inquiry and that they assist in relation to

          22       that.  However, there are limits on what they can do

          23       without revealing the sources of the material which they

          24       are not permitted to do.  Therefore, in these

          25       circumstances, it made every sense in the circumstances


                                           117
 
           1       for S1 and S2 to see these documents in order that they

           2       could look and could decide what they could say without

           3       getting themselves into difficulties.

           4   SIR CHRISTOPHER HOLLAND:  I see.

           5   MR COLLERY:  For that reason, we did show those and later

           6       met with your inquiry team to discuss the matter, to

           7       ensure that they could be called and it would not cause

           8       problems in due course.  So that is the circumstances as

           9       to S1 and S2.  The difficulty, of course, is that we

          10       received the request not to show it to anybody two days

          11       later.  By then, it was too late.

          12   SIR CHRISTOPHER HOLLAND:  As Mr Thomas said, it's all to do

          13       with stable doors.

          14   MR COLLERY:  The door was waving in the wind at that stage,

          15       to mix the metaphors.

          16   MR GLASSON:  Sir, for the IPCC, we would endorse Mr Thomas'

          17       concerns and we would respectfully submit that it would

          18       be inappropriate for the questions and the level of

          19       detail that we've seen thus far to be provided to the

          20       witnesses.

          21           There is a mid-point, which is the question as to

          22       whether or not the list of documents that Mr Underwood

          23       intends to provide to take the witness to should be

          24       provided to the witness.  Sir, on that point, we would

          25       be neutral, but it would clearly be a mid point that


                                           118
 
           1       might save some time.

           2   SIR CHRISTOPHER HOLLAND:  You interest me greatly.

           3   (3.02 pm)

           4   MR UNDERWOOD:  One sees the strength of feeling.  As you

           5       see, there are two points of view on this, and

           6       obviously, in particular with HMRC, it was very

           7       important to have this degree of canvassing.

           8           I'm not going to press the point.  As I say,

           9       instinctively, one was in favour of being as open and

          10       transparent as possible.  If there are well-founded

          11       objections to that because it might lead to a trap, so

          12       be it.

          13   SIR CHRISTOPHER HOLLAND:  Well.  Mr Underwood, my current

          14       reaction that is Mr Glasson's really put his finger on

          15       it.  By all means, circulate this amongst the inquiry,

          16       the core participants, their legal teams, as you have

          17       done, above all to identify the documents that are going

          18       to be relied upon, because this is not always

          19       straightforward, is it?  But either perhaps for me to

          20       rule or underline what appears to have been the practice

          21       adopted already and that is of not providing police

          22       officers with the list of questions that they're going

          23       to be asked.

          24   MR UNDERWOOD:  Yes.  In fact, I'll simply say I will not

          25       circulate these with the expectation they will go to


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           1       witnesses and in that event you need make no ruling, as

           2       I understand it.

           3   SIR CHRISTOPHER HOLLAND:  Well, it looks as though you're

           4       home and dry, Mr Thomas.  I mean, there is something to

           5       be said for passing these amongst the team and

           6       particularly to identify the documents.

           7   MR THOMAS:  Sir, I've never had an objection to that and

           8       I've never had an objection to documents being

           9       circulated.  It's a specific -- I need say no more.

          10   SIR CHRISTOPHER HOLLAND:  Thank you very much.  Thank you

          11       very much for raising, Mr Thomas.  Now, is everybody

          12       clear then, it stays with the legal teams?

          13   MS STUDD:  Yes, and we can provide a list of documents to be

          14       referred to these witnesses.

          15   SIR CHRISTOPHER HOLLAND:  Well, you must do that.  We're

          16       going to have people staring at documents for the first

          17       time in seven years.

          18   MS STUDD:  I think that's unlikely, but I think if we can

          19       just make it clear to them exactly what they're going

          20       to --

          21   SIR CHRISTOPHER HOLLAND:  Now, can I return these.  That's

          22       for you and that's for Ms Leek.  (Handed).

          23   (3.04 pm)

          24   SIR CHRISTOPHER HOLLAND:  Now.

          25   MR UNDERWOOD:  What we're due to do now is get to the


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           1       opening statements of the other core participants.  I

           2       should say that Ms Evans on behalf of the various media

           3       interests wished me to say that they are considering the

           4       position about the ruling you made earlier and on that

           5       basis they would like to see the ruling before much else

           6       happens.  I wonder if we perhaps ought to rise for the

           7       day so that could be done.

           8   SIR CHRISTOPHER HOLLAND:  That's your advice to me?

           9   MR THOMAS:  Sir, I would invite us to deal with the opening

          10       statements because, after the opening statements, that

          11       might be a natural break in any event and, as I

          12       understood it, because I've canvassed this with my

          13       colleagues, I don't think the remaining opening

          14       statements are likely to be particularly long and we've

          15       got an hour left.

          16   SIR CHRISTOPHER HOLLAND:  Well, if I just rise.  I'm going

          17       to rise for five minutes and would you just sort it out

          18       amongst yourselves.  I'll do anything that anybody

          19       wants.

          20   MR COLLERY:  We shall.

          21   SIR CHRISTOPHER HOLLAND:  Five minutes.

          22   (3.06 pm)

          23                         (A short break)

          24   (3.15 pm)

          25   MR UNDERWOOD:  Peace and reconciliation has broken out.


                                           121
 
           1       Everybody agrees they can all do their openings within

           2       the remaining time and therefore are going to open now.

           3   SIR CHRISTOPHER HOLLAND:  Right.  Sorry, what's happening

           4       about this whole order then?

           5   MR UNDERWOOD:  I'll draw the order up at the end of the day.

           6       There was a concern on the part of one of the core

           7       participants that they didn't want to have an opening

           8       alone today.  It was mainly a timing matter, to see how

           9       long everybody was going to be.  As long as all of the

          10       openings are done before the order's drawn and the press

          11       can see the position, there's no difficulty.

          12   SIR CHRISTOPHER HOLLAND:  I'm totally happy with that.  I

          13       just want to make sure you've got this ruling under

          14       control.

          15   MR UNDERWOOD:  I have it under control.

          16   SIR CHRISTOPHER HOLLAND:  Good.  Yes, Mr Collery.

          17                Opening submissions by MR COLLERY

          18   MR COLLERY:  Sir, I think I have been volunteered or have

          19       volunteered to go first.

          20           As you have heard, Customs were the providers of the

          21       intelligence to the Metropolitan Police back in 2005.  I

          22       shall refer to them throughout as Customs.  I know that

          23       there was that period on 18 April when they merged with

          24       the Revenue, but effectively this started as a Customs

          25       operation and the merger made little difference.  So I


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           1       think it will probably be easier to refer to them as

           2       Customs.

           3           They had been investigating the activities, as

           4       you've heard, of a group of Colombians who were

           5       trafficking significant quantities of drugs into the

           6       United Kingdom.  At that time, the investigation of drug

           7       trafficking of that nature was within the remit of

           8       Customs.  As part of that investigation, they gathered

           9       intelligence on the man that we are calling, for the

          10       purposes of the inquiry, Principal.  As has been made

          11       clear, his name is known and it was passed by Customs to

          12       the Metropolitan Police Service.

          13           He was organising couriers for drugs into the United

          14       Kingdom.  As time went on, the intelligence became clear

          15       he was also drug trafficking within the United Kingdom.

          16       He bought drugs from those who imported it.  One of the

          17       criminal activities in which he was also engaged was to

          18       rob some of those importers at gun point.  There were

          19       also threats being made with the firearms of a different

          20       nature.

          21           Clearly, if you intend to use guns to rob somebody,

          22       you put their lives and indeed the lives of others at

          23       risk.  When Customs receive intelligence about such

          24       plans before the event, they pass the intelligence to

          25       the police force, the area concerned.  Her Majesty's


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           1       Customs and Excise are not armed.  Sometimes, of course,

           2       the intelligence about such robberies is only received

           3       after the event and it is simply logged and noted.

           4           As you've heard, there came a point in April 2005

           5       where Customs gathered intelligence indicating that

           6       Principal intended to rob at gun point one of the

           7       Columbian organisations being investigated by Customs.

           8           Intelligence indicated he would be assisted by some

           9       of those working to him and associated with him.  The

          10       plan began in early April and the intelligence was

          11       passed to the Metropolitan Police Service, who started

          12       their own operation to investigate.  That became

          13       Operation Tayport, which you've heard briefly mentioned.

          14           For whatever reason, it appears the armed robbery

          15       did not happen in early April.  The intelligence

          16       stopped.  On 28 April, as you've heard, intelligence was

          17       again received that the plan had resurrected.  This was

          18       immediately passed to the Metropolitan Police.

          19           It is often perhaps imagined that law enforcement

          20       agencies have the benefit of perfect sight when they are

          21       receiving intelligence and that the officers sit for

          22       hours contemplating and analysing the import and meaning

          23       of what they receive.  The reality is necessarily

          24       different.  Officers, as here, are under pressure to

          25       find out what they can as soon as they can when often


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           1       there is little time to do so.

           2           So, on 28 April, the intelligence, late afternoon,

           3       was that the armed robbery would be that evening.  The

           4       identity of these Colombians was not known.  It was

           5       simply known they were in the Edgware area and that this

           6       is where the robbery was likely to happen.  The plan was

           7       to use firearms to rob them of a substantial amount of

           8       Class A drugs.  Now, given the Colombian link, it is

           9       reasonable to conclude that this was in relation to

          10       substantial amounts of cocaine.

          11           What was indicated was that Principal was not

          12       himself to take part in that.  Instead, a number of

          13       associates would do so.  Over time, it became clearer

          14       that this included Wesley Lovell and it was known where

          15       he lived.  It also included three others whose

          16       identities were not known and it was not known where

          17       they lived.  One of those was the man that we now know

          18       to be Azelle Rodney, but who is to be referred to by the

          19       officers as Associate 2.

          20           So, in April 2005, you had intelligence viewed as

          21       reliable that indicated a serious offence was to be

          22       committed but provided only part of the picture.  That

          23       is not out of the ordinary.  It is so often the way.

          24           The intelligence in April 2005 was received by two

          25       officers referred to as S1 and S2.  These were officers


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           1       engaged solely in an intelligence function at Customs.

           2       You have granted them anonymity.  They were the officers

           3       with responsibility for investigating primarily

           4       Colombians but also Principal, who was associated with

           5       the Colombians.

           6           S1 and S2 worked closely together at the time and,

           7       as one finished a shift, the other would ensure that his

           8       or her colleague was brought up-to-date with what had

           9       been happening.  They would, as necessary, discuss the

          10       intelligence and the inferences to be drawn from the

          11       intelligence to ensure that they agreed with what

          12       inferences could be drawn.  If it was unclear, they

          13       would discuss it with colleagues engaged in the same

          14       line and indeed with those to whom they passed the

          15       intelligence with responsibility for investigating

          16       matters out on the ground.

          17           Now, both those officers have been asked to make

          18       Rule 9 statements.  Both officers have fully co-operated

          19       with the inquiry.  Customs has fully co-operated with

          20       the inquiry.  Customs takes its responsibilities very

          21       seriously and wants this inquiry to be assisted in its

          22       work.  However, Customs, S1 and S2 also have

          23       responsibilities beyond this inquiry and one of those is

          24       ensuring that the source of the intelligence is not

          25       revealed.


                                           126
 
           1           Customs have worked therefore with your counsel and

           2       the Metropolitan Police Service to make sure you will

           3       receive evidence about the intelligence and the

           4       officers' assessment of that intelligence at the time

           5       and, in doing so, the source of the intelligence is not

           6       revealed.

           7           Now, S1 and S2 passed intelligence to the

           8       Metropolitan Police Service over the course of the three

           9       days following on from 28 April.  As I've said, the

          10       robbery was originally to be on the 28th.  It was put

          11       off to the 29th and then postponed again until the 30th.

          12       S1 and S2 liaised with the Metropolitan Police Service

          13       officers with responsibility over those days and when

          14       further intelligence became available.

          15           As the Metropolitan Police Service has indicated in

          16       various documents, as time went on the intelligence

          17       indicated that those involved may be armed with

          18       automatic weapons.  We know now, of course, that, whilst

          19       there were three weapons of various types and

          20       capabilities ultimately found in the car, none of them

          21       were in fact fully automatic weapons.  It does not

          22       follow that they were not drawing a reasonable inference

          23       from the intelligence that was available at that time.

          24           As I said, S1 and S2 had prime responsibility for

          25       the receipt of the intelligence.  They were not on duty


                                           127
 
           1       all the time and they took holidays.  In 2010, as this

           2       inquiry began, and when they were asked by Customs to

           3       consider this matter again, they, and indeed another

           4       officer with greater knowledge of the electronic

           5       database used in 2004, went through everything that was

           6       available in relation to Principal and his associates.

           7           The other officer found a record linking the name

           8       "Azell", spelt without an E on the end, to Associate 2.

           9       S1 and S2 at that point immediately saw its potential

          10       significance.  This record was shown as made in August

          11       of 2004.  It was not made by S1 or S2.  Indeed, S1 was

          12       on holiday for three weeks at that time.

          13           It was recorded somewhere not obvious and was never

          14       at that time drawn to the attention of S1 or S2 by

          15       whoever made the note.  It is quite possible that at

          16       that time no great significance was identified.  It was

          17       simply another snippet about one associate of Principal,

          18       an associate who was a focus of Customs attention.

          19           Lots and lots of information is recorded in the

          20       course of a long operation.  Not all of it is of equal

          21       importance and, if importance is not recognised at the

          22       time, then, by the time there is an importance, the

          23       reality is that it may have been subsumed into the

          24       general mass of what went before.

          25           In addition, S2 found in 2010 a record linking the


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           1       date 22/04 to Associate 2.  Again, neither S1 nor S2

           2       made the note.  It is believed this note was made in

           3       April 2004, when Customs first became aware of

           4       Associate 2 and his association with Principal.

           5           One of the questions posed yesterday by my learned

           6       friend Mr Underwood's opening in paragraph 61 was "did

           7       HMC&E/HMRC appreciate prior to 30 April 2005 that the

           8       person we are now calling Associate 2 was also the

           9       person called Azelle, whose partial date of birth HMC&E

          10       had?  If not, should they have?"

          11           It may be clear there from what I have said that an

          12       officer at Customs was aware of a link between

          13       Associate 2 and the name Azelle, eight months before

          14       events you are concerned with.

          15           Customs accept that it may have assisted the

          16       Metropolitan Police to have those pieces of information.

          17       It may have allowed them to more easily identify a third

          18       member of Principal's organised crime group.

          19           The reason I open this to you now is the matter has

          20       been carefully considered by Customs and it takes the

          21       view that it was not the fault of S1 and S2 that those

          22       snippets gathered between eight months and a year before

          23       were not passed to the police.  They did not record

          24       them, they did not know about them.  At the time they

          25       had limited value.  As I've said, Associate 2 was but


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           1       one of the associates of Principal, and I repeat he was

           2       not a focus of Customs investigation.

           3           In addition, the electronic information systems in

           4       use in 2004 and 2005 did not make conducting the sort of

           5       search conducted in 2010 easy or quick.  In 2005, it is

           6       simply not the sort of search that S1 and S2 could

           7       reasonably be expected to have taken time away from

           8       receiving intelligence to have made.

           9           As we saw yesterday, the intelligence situation was

          10       dynamic in April 2005.  It was absorbing of time and

          11       attention.  No officer might have been expected to

          12       undertake such a search with the system capabilities as

          13       they were in 2005 and still have coped with that dynamic

          14       situation.

          15           By contrast, capabilities have moved on and in 2012

          16       it is two generations of systems further on and Customs

          17       are confident that it now may have been more easily

          18       found.

          19           S1 and S2 were both experienced and valued

          20       intelligence officers.  They worked very hard to make it

          21       possible for the inquiry to receive their evidence.  It

          22       is worth remembering that the only reason the existence

          23       of those two pieces of information have come to light is

          24       because they found them with this other officer and

          25       identified them to their management, knowing and


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           1       expecting it would then, and indeed was, be drawn to the

           2       intention of the inquiry.

           3           Let me be clear: Customs do not accept the not

           4       passing of those two pieces of information contributed

           5       to what eventually happened on 30 April 2012.  But, if

           6       that view is taken by you, Customs would suggest that

           7       any responsibility would lie with the department and not

           8       with S1 or S2.

           9   SIR CHRISTOPHER HOLLAND:  Thank you very much.  Yes,

          10       Mr Glasson?

          11   (3.21 pm)

          12                 Opening statement by MR GLASSON

          13   MR GLASSON:  Sir, may I make just a few brief observations

          14       on behalf of the Independent Police Complaints

          15       Commission.

          16           As Mr Underwood explained in his opening speech, the

          17       Commission carried out an immediate investigation into

          18       the death of Azelle Rodney.  That investigation was

          19       performed in accordance with the Commission's statutory

          20       functions under the Police Reform Act 2002, which gave

          21       the Commission oversight of the Metropolitan Police but

          22       not, at that time, of HMRC.  Jurisdiction was extended

          23       to HMRC from 1 April 2006.

          24           Mr Underwood described the investigation as an

          25       extensive one and one that the inquiry intended to draw


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           1       heavily upon.  The report of your inquiry, however, will

           2       have the advantage of being based on the questioning of

           3       witnesses and advances in technical expertise.  Your

           4       inquiry will have the advantage of seeing the underlying

           5       intelligence.  It will also have the benefit of

           6       submissions from counsel of the core participants as

           7       well as, of course, your own counsel.

           8           But, for all of those reasons, we agree that it is

           9       right that you examine afresh the circumstances by which

          10       Azelle Rodney came by his death, to examine those

          11       circumstances thoroughly and in detail, taking into

          12       account all relevant information, including any that was

          13       not available in 2005, some seven years ago, at the time

          14       of our investigation.

          15           An investigation by the Commission of a fatal

          16       shooting by the police is only one part of the way in

          17       which the United Kingdom complies with the procedural

          18       obligations under Article 2 of the Convention.  The

          19       judicial examination that follows, whether it be at an

          20       inquest, a criminal trial or today at this public

          21       inquiry, is the other mechanism of discharging that

          22       obligation.  As Mr Underwood said yesterday, and I

          23       quote, "for a very long time it looked like the need for

          24       an open investigation and the need to protect the

          25       sources of sensitive intelligence were mutually


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           1       incompatible".  Like you, we consider that those

           2       difficulties caused a wholly unacceptable delay.

           3           Sir, our primary function at the inquiry is to

           4       provide assistance to you.  The Commission has, of

           5       course, co-operated with the inquiry since it was

           6       established.  We very promptly complied with your

           7       question for disclosure, such that it was.

           8       In November 2010 we passed to you all our unredacted

           9       unused material, in all a huge amount of material.

          10           Sir, now that we are core participants, we fully

          11       intend to continue to co-operate closely with this

          12       inquiry.

          13   SIR CHRISTOPHER HOLLAND:  Thank you very much, Mr Glasson.

          14       Yes, Ms Studd.

          15   (3.24 pm)

          16                  Opening statement by MS STUDD

          17   MS STUDD:  Sir, on behalf of the Metropolitan Police

          18       Service, the Service deeply regrets the death of any

          19       individual as a result of police action and has worked

          20       closely with, and endeavoured to assist, the inquiry

          21       with its search for the truth in relation to the

          22       circumstances surrounding the death of Azelle Rodney.

          23       It recognises that, in a democratic society, any death

          24       at the hands of the state should be subjected to an

          25       vigourous investigation and welcomes the commencement of


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           1       these oral hearings.

           2           It is regrettable for all that there has been such a

           3       significant delay in reaching today's position.  As you

           4       know, sir, and your counsel has already made reference

           5       to this in his opening, the delay has been beyond the

           6       control of any of the core participants in this case.

           7       The preparation of the evidence for this inquiry has

           8       taken many hours of work to enable it to be an inquiry

           9       that can be heard largely in the public forum.

          10           The Metropolitan Police Service obviously supports

          11       this inquiry and hopes that it will provide a forum

          12       where a fair hearing for all concerned will be

          13       conducted.

          14           Without rehearsing any evidential issues, but to put

          15       the operation of 30 April 2005 in some context, the

          16       inquiry will be aware that, under Article 2 of the

          17       European Convention on Human Rights and Fundamental

          18       Freedoms, the Metropolitan Police Service has a number

          19       of coexisting obligations requiring them to manage real

          20       and immediate risks of serious harm or death to an

          21       individual or individuals from a third party of which

          22       the Metropolitan Police Service are, or ought to be,

          23       aware.

          24           Those obligations translate into duties owed to the

          25       public of London, the suspects of any operation, their


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           1       intended victims and to the police officers who are

           2       concerned in the management of the risk.

           3           The Metropolitan Police Service accept that

           4       balancing those coexisting and at times competing duties

           5       requires difficult operational decisions to be made,

           6       often in relatively fast time, by individual officers

           7       and particularly by those in a command role.

           8           As the inquiry will hear, the operation on 29 and

           9       30 April arose as a result of information from HMRC that

          10       a significant threat had been identified to the lives of

          11       a number of unknown Colombians.  Intelligence indicated

          12       that a group of black males were going to meet with the

          13       group of Colombians to purchase drugs.  According to the

          14       intelligence, however, the intention was not to pay for

          15       those drugs, but to rob the Colombians at gun point.

          16           It was believed that the robbery would take place in

          17       the area of Edgware and that the black males had access

          18       to a firearm.  It was as a result of that information

          19       that an operation was mounted by SCD7, projects team,

          20       which aimed to prevent the serious injury or death of

          21       the unknown Colombians, the serious injury or death of

          22       any innocent member of the public caught up in the

          23       robbery and the serious injury or death of the suspects,

          24       also unknown, or of the police officers tasked with

          25       intervening and preventing any injury from occurring.


                                           135
 
           1           As the intelligence developed, it became apparent

           2       that the firearms in question may have been machine

           3       guns, thus potentially increasing the danger to all of

           4       those concerned.

           5           This type of operation illustrates the balance that

           6       has to be struck when planning an intervention with the

           7       use of firearms with the aim of protecting life and

           8       preventing crime on the one hand while acknowledging on

           9       the other that any possession or use of firearms by any

          10       person puts suspects, the public and the police officers

          11       at risk.

          12           The Metropolitan Police Service accepts that the

          13       inquiry may reach conclusions that either expressly or

          14       impliedly criticise the Service or the way that

          15       individual officers have conducted themselves in the

          16       course of, or in the aftermath of, this operation.

          17           Without in any way minimising the impact that the

          18       death of Azelle Rodney must have for his family, it must

          19       be for the benefit of all that any lessons that need to

          20       be learned for the sake of conduct of these high risk

          21       threat-to life operations can be learned in order to

          22       minimise any risk of loss of life of serious injury to

          23       the public of London, whether they be suspects, their

          24       intended victims, police officers or innocent bystanders

          25       unwittingly caught up in the events.


                                           136
 
           1           The Metropolitan Police hope that this inquiry will

           2       allow public scrutiny of the difficult decisions that

           3       police officers are required to take in order to

           4       minimise, so far as reasonably possible, the risk to

           5       life or serious injury from a third party.

           6           During the seven and a half years that have elapsed

           7       since April 2005, the Metropolitan Police procedures in

           8       relation to high threat operations have been scrutinised

           9       and reviewed in order to ensure that, where changes

          10       needed to be made, they have been made.  It is important

          11       that this inquiry considers the officers' actions on

          12       30 April 2005 in the light of their training and the

          13       procedures in place then, while of course looking

          14       forward to ensure that any identifiable learning, if it

          15       has not already been implemented, is identified for the

          16       future.

          17           The Metropolitan Police is fully committed to

          18       assisting you, sir, and to the inquiry team, in

          19       understanding the issues and the pressures placed upon

          20       the police officers policing these threat-to-life

          21       incidents.  The Metropolitan Police continues to strive

          22       to protect the public of London to the best of its

          23       abilities and to ensure that public confidence in the

          24       police is maintained and justified.

          25   SIR CHRISTOPHER HOLLAND:  Thank you very much, Ms Studd.


                                           137
 
           1       Who is next?  Ms Leek?

           2   (3.31 pm)

           3                   Opening statement by MS LEEK

           4   MS LEEK:  Sir, seven years after the incident in which

           5       Azelle Rodney was shot, E7 is grateful finally to have

           6       the opportunity to explain publicly the reasons for

           7       discharging his firearm.  He recognises, first, that it

           8       is a matter of great public concern whenever a member of

           9       the public is shot by a member of the police; second,

          10       that there must be a thorough public investigation of

          11       the circumstances leading to the shots being fired; and,

          12       third, that any officer who fatally injures a member of

          13       the public must account for the shots fired.

          14           He will explain that, when he discharged his weapon,

          15       he believed that Mr Rodney had picked up and was

          16       preparing to shoot a fully automatic weapon and he fired

          17       at Mr Rodney until he perceived that there was no longer

          18       a threat.  He fully understands that Mr Rodney's family

          19       holds him responsible for his death.  He will explain

          20       that, in the circumstances as he found them to be, he

          21       believed that he had no alternative but to fire.

          22   (3.32 pm)

          23   SIR CHRISTOPHER HOLLAND:  Thank you very much, Ms Leek.

          24       Mr Thomas.

          25                  Opening statement by MR THOMAS


                                           138
 
           1   MR THOMAS:  Thank you, sir.

           2           Sir, this is the opening statement on behalf of

           3       Mr Straw and myself.

           4           We've had the opportunity to hear the opening

           5       statement of counsel to this inquiry and now the other

           6       core participants.  We would be the first to acknowledge

           7       the hard work that Mr Underwood and his team have done

           8       to enable this inquiry to take place.

           9           Ms Alexander wishes to highlight for your attention

          10       only a few matters, some of which have already been

          11       touched upon by Mr Underwood, and some of which are in

          12       addition to those which Mr Underwood has already

          13       addressed.

          14           Ms Alexander appreciates that the inquiry

          15       understands the importance of an Article 2 inquiry into

          16       any death at the hands of the police and the efforts so

          17       far taken to get her to this position.  It is now,

          18       Ms Alexander hopes, if the evidence shows that

          19       wrongdoing has occurred, that this inquiry will have the

          20       courage and will not shrink away from holding that there

          21       was wrongdoing by state agents and will say so clearly,

          22       publicly and unequivocally.

          23           Ms Alexander also hopes that, during the course of

          24       this inquiry, she and her legal team will continue to be

          25       properly involved in this process and able to fully and


                                           139
 
           1       adequately participate at all relevant and material

           2       stages.

           3           Azelle Rodney was Susan Alexander's first child, the

           4       first of three boys.  The impact on Susan Alexander has

           5       been immense in terms of losing her son.  That trauma

           6       was made far worse, sir, because the reason for Azelle's

           7       death, the reason why he was shot, the circumstances in

           8       which he was shot, were hidden from her.

           9           It is now more than seven years since his death and

          10       she has still not learnt the truth.  For over seven

          11       years, Ms Alexander has been subjected a bewildering

          12       legal obstacle course in the struggle to obtain answers

          13       to her questions and has felt as if she has been

          14       marginalised at times and treated as a nuisance at

          15       others in pursuit of the truth.

          16           Following Azelle's shooting, the IPCC conducted an

          17       investigation and its conclusions were passed on to the

          18       CPS for consideration as to whether or not there should

          19       be a prosecution.  In July 2006, the CPS advised that

          20       there was insufficient evidence to justify criminal

          21       charges being brought against any police officer

          22       involved in the operation which resulted Azelle Rodney's

          23       death.  Subsequently, over a year later, in August 2007,

          24       the deputy coroner, as he then was, Andrew Walker, was

          25       told by the police and the IPCC that he would not be


                                           140
 
           1       able to see all the material relating to the shooting

           2       and that also the family were also prevented from seeing

           3       it.  This results, sir, as you know, in Deputy Coroner

           4       Walker deciding that the inquest could not take place,

           5       at least not without some legal changes.

           6           For this reason, sir, Ms Alexander had to endure

           7       significant further delay in her search for the truth,

           8       since she was caught up in the legal and Parliamentary

           9       complexities surrounding the whole issue of secret

          10       evidence.  I do not propose to go into the details of

          11       these issues here, sir, as they are already well-known

          12       to you.  Suffice to say it took a further two and a half

          13       years of political debate and lobbying by Ms Alexander

          14       and numerous other people in organisations before the

          15       then Justice Secretary Jack Straw, when he announced on

          16       30 March 2010 that an inquest would be replaced

          17       exceptionally by this inquiry, which he said would be

          18       set up in due course.

          19           In fact, your appointment and the work of this

          20       inquiry was delayed for several more weeks until the

          21       May 2010 general election.

          22           It is very difficult for you, sir, or anyone else

          23       here, to begin to understand what the delay of over

          24       seven years has been like for Ms Alexander and her

          25       family waiting to find out the truth about what happened


                                           141
 
           1       to her son and why he was killed.  As a result, sir,

           2       Susan has never been able to properly grieve, since the

           3       grieving process can only start once the truth is known.

           4           Further, hiding the truth means that the family of

           5       the dead, and the public more widely, will be

           6       suspicious.  As I'm sure that all those here would

           7       agree, if we permit, as a society, our police to use

           8       deadly force, they should be trained to a high standard.

           9       With great power comes great responsibility.  Some of

          10       the issues for this inquiry will be whether those

          11       involved in the operation were appropriately trained and

          12       whether the great powers that the state agents were

          13       entrusted with by the public was responsibly and

          14       appropriately used.

          15           Sir, can I say this: we do not seek to justify what

          16       Azelle was doing on the day he died, nor do we seek to

          17       paint him as an angel.  State agents were justified in

          18       suspecting that Azelle was involved in criminal

          19       activity.  But he was entitled to be apprehended.  If

          20       there was evidence, he was entitled to be charged.  He

          21       was entitled to be brought before a court of law to face

          22       a trial before a jury of his peers and, if convicted, be

          23       rightly and properly punished with the deprivation of

          24       his liberty.  The fact that he was strongly suspected in

          25       being involved in criminal wrongdoing does not justify


                                           142
 
           1       him or anyone else being summarily killed.

           2           Ms Alexander has grave concerns that proper due

           3       process was not afforded to her son.  Indeed, from what

           4       she has already heard, she strongly suspects that her

           5       son may have been arrested earlier if there were not

           6       legal restrictions, for example, because we know not,

           7       because we're not permitted to know, if intercept

           8       evidence, which we know is currently prohibited from

           9       being used in criminal proceedings may have been

          10       available.  We know not.

          11           We will be scrutinising, sir, the actions of the

          12       police officers in this case very carefully.  Sir, I

          13       assure you, I will be doing so fearlessly and robustly,

          14       as if this were before an inquest jury.  The questions

          15       we will put will be firm but fair.  We have no doubt,

          16       sir, that you understand at times some of the questions

          17       which may be put in the course of this inquiry may be

          18       uncomfortable for some of the participants who have to

          19       come before you to justify their actions, their conduct.

          20       You undoubtedly understand that this is the nature of

          21       the beast and will not only allow such questions but, if

          22       the witnesses seek to avoid answering properly put

          23       questions by evasion, you will insist that those

          24       questions are answered.

          25           Ultimately, sir, if individuals were at fault, they


                                           143
 
           1       should be held accountable.  We fully appreciate that

           2       this is not a trial, that no-one is on trial.  But

           3       accountability also means public recognition and

           4       findings that, where things have gone wrong, there is

           5       proper recognition and findings as to how and why those

           6       things went wrong.  This inquiry should not seek to

           7       avoid that reality and we are sure it won't.

           8           Additionally, sir, if there were individual or

           9       systematic errors, they should be identified publicly by

          10       this inquiry to avoid others being killed in the future.

          11           Although it is clearly beyond the scope of this

          12       inquiry to look at this, Ms Alexander does wonder

          13       whether any of the police shootings which have taken

          14       place in the last seven years might have been avoided

          15       had the opportunity for lessons to be learnt in a

          16       similar fashion have taken place earlier.

          17           As you would expect, sir, there are a substantial

          18       number of questions which Ms Alexander wants answered

          19       during the course of this inquiry, some of which have

          20       already been touched upon by Mr Underwood.  We do not

          21       repeat them here.

          22           Finally, sir, this inquiry, and the answers to all

          23       relevant questions, are of great importance.

          24       Ms Alexander hopes the process will help her move on

          25       from this appalling tragedy, will lead to lessons being


                                           144
 
           1       learned, hopefully to prevent others being killed or

           2       seriously injured by the police in the future, and will

           3       reassure the wider public that the accounts of those who

           4       use lethal force are thoroughly scrutinised in addition

           5       to answering the fundamental questions as to whether the

           6       officer who shot her son dead was justified in doing so.

           7   SIR CHRISTOPHER HOLLAND:  Thank you very much indeed,

           8       Mr Thomas. Now, I think, Mr Underwood, that concludes

           9       the proceedings for today, subject to the drafting of

          10       this order.

          11   (3.44 pm)

          12   MR UNDERWOOD:  Yes.  Can I have a moment to have a word with

          13       Mr Thomas, before I say more?

          14   SIR CHRISTOPHER HOLLAND:  Yes, do.  (Pause).

          15   MR UNDERWOOD:  I am just asking Mr Thomas to ask a question

          16       of Ms Alexander.   (Pause).

          17           As you know, Ms Alexander would like to address you

          18       and she would like to do that now.

          19   SIR CHRISTOPHER HOLLAND:  Now?  Sorry, is this addressing me

          20       or giving evidence?  I'm not being facetious.

          21   MR UNDERWOOD:  Giving evidence.

          22   SIR CHRISTOPHER HOLLAND:  Giving evidence now.  Indeed.

          23       Yes, certainly.

          24   (3.45 pm)

          25


                                           145
 
           1                     Susan Lorraine Alexander

           2   MR UNDERWOOD:  I apprehend that nobody bought this evidence

           3       on oath.

           4   SIR CHRISTOPHER HOLLAND:  No.  Absolutely not.

           5   MR UNDERWOOD:  Sir, unless there is any specific objection,

           6       everybody has had advance notice of this statement.

           7   SIR CHRISTOPHER HOLLAND:  Except me.

           8   MR THOMAS:  I would simply ask Mrs Alexander to read our her

           9       witness statement.

          10   SIR CHRISTOPHER HOLLAND:  Well, if you just give me a

          11       moment, I'm the person whose been left out of the loop

          12       at the moment.  So if somebody could provide me with a

          13       statement.

          14   MR THOMAS:  Yes, of course.  Sir, can I provide --

          15   SIR CHRISTOPHER HOLLAND:  No, you need a statement.

          16       (Handed).  Over to you, Mr Thomas. Thank you very much.

          17                     Questioned by MR THOMAS

          18   MR THOMAS:  Sir, unless there is any objection, I would

          19       simply Ms Alexander to read her statement.

          20   SIR CHRISTOPHER HOLLAND:  Well, I have no objection,

          21       certainly.

          22   MR THOMAS:  Could you start by telling us your full name,

          23       please.

          24   A.  Susan Lorraine Alexander.

          25   Q.  And, Azelle Rodney, who was he to you?


                                           146
 
           1   A.  He's my son.  My first son.

           2   Q.  Could you read your statement out please?

           3   A.  I make this statement in connection with the untimely

           4       death, on 30 April 2005, of my eldest son, Azelle

           5       Rodney.

           6           His full name was Azelle Winston Junior Rodney and

           7       his nickname, from when he used to play football, was

           8       Speedy.  And with the father of Azelle Rodney, I have two

           9       younger sons also.

          10           When he was killed, Azelle had been in a long term

          11       relationship with Monique Gilbert, who was in her

          12       eighth month of pregnancy.

          13           This statement has taken almost seven years to

          14       finalise as I began writing it as long ago as November

          15       in 2005, little knowing it would take this long to reach

          16       this point in late August 2012, where I could conclude

          17       this statement as my evidence to a public hearing

          18       concerning Azelle's death.

          19           I am devastated that it has taken so long to reach

          20       this stage.  The Government has already apologised to me

          21       about that delay, placing its apology on record at the

          22       European Court of Human Rights in February 2012,

          23       admitting that my right to a prompt investigation into

          24       Azelle's death had been breached since at least

          25       April 2009.  But no apology can ever heal the damage


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           1       that this long wait was caused me.  Waiting for so long

           2       to hear the evidence about Azelle's death has had a

           3       massive effect on my life, which perhaps no-one else can

           4       understand.  I don't think I'll every recover from it

           5       and it has had such a big impact on my state of mind, my

           6       work and my personal life.

           7           No one should have to wait for so many years to find

           8       out why their son or daughter died at the hands of --

           9   SIR CHRISTOPHER HOLLAND:  Ms Alexander, would it help if you

          10       let Mr Thomas read it?  Do you think that might be a

          11       good idea?  I mean --

          12   A.  I'll just carry on for a bit longer.

          13   SIR CHRISTOPHER HOLLAND:  You carry on.  I mean, I'm in your

          14       hands.

          15   A.  Okay.

          16           With the evidence finally being heard from

          17       3 September, my main concern now is to see a robust,

          18       effective and transparent inquiry.  Everyone needs to

          19       know what happened on 30 April 2005 and why my son died

          20       that day.

          21           Azelle was educated at Gayton High School and then

          22       went on to Holland Park Comprehensive School and then to

          23       Henry Compton for Years 11 and 10.  However, he left

          24       school with no formal qualifications because of a very

          25       bad injury he received to his hip when he was just


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           1       15 years old.

           2           Until his injury, Azelle was a very keen sportsman

           3       and held many trophies.

           4   MR THOMAS:  Shall I continue?

           5   A.  Okay.

           6   MR THOMAS:  "He held many trophies and medals for football,

           7       swimming and athletics.  In fact, he held certificates

           8       for playing in football competitions that were sponsored

           9       by the Metropolitan Police Service.  This was when he

          10       was in a club called Ealing Whistlers.

          11           The accident that happened to Azelle when he was

          12       15 years old caused him to be in hospital for about

          13       three months and left him feeling very low for about

          14       two years.  It left him with a limp but he was against

          15       applying for benefits or relying on the state for help.

          16           Leaving school without qualifications, and with the

          17       background of his injury, it was difficult for Azelle to

          18       plan a career.  He showed a definite interest and

          19       aptitude for sports education.  I know that he went on

          20       an instructor's course and did a short placement

          21       somewhere near Billingsgate Market.

          22           I know that Azelle was a very popular young man,

          23       with many friends, particularly from the Fulham area,

          24       where he grew up before he moved out to Bedfont area.

          25           In the months before Azelle was killed, he was


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           1       spending a lot of time with Monique Gilbert, which was

           2       of course natural, given that Monique was due to give

           3       birth.  As far as I understood it, however, when I saw

           4       Azelle for the last time a few weeks before the

           5       shooting, he did not have his own place but was planning

           6       to find somewhere to live near Monique's address in

           7       Fulham.  I knew that he was staying at Monique's place

           8       with her parents a fair amount.

           9           As far as I was aware, a couple of months before he

          10       was killed, Azelle had left an address in the Hendon

          11       area that he had been renting.  It had been a few weeks

          12       since I had seen Azelle when I learnt that he was killed

          13       by a police officer in a shooting in Hale Lane,

          14       Edgeware.

          15           As I did not see Azelle on 30 April and was not a

          16       witness to what happened, I can only say that I am still

          17       shocked that guns were found by the police in the car

          18       that Azelle was traveling in when he was killed.  I do

          19       not accept, from what I have heard, that the police had

          20       good reasons to shoot at him, let alone killing him.

          21           Since 30 April 2005, my life has been in turmoil.

          22       During the seven years it has taken to get to this

          23       point, I have had to learn what happened over a long

          24       drawn out process.  I guess there were about three

          25       phases of disclosure: (a) the CPS decision letter in


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           1       July 2006 and (b) the IPCC redacted report

           2       in December 2006, followed by partial and redacted

           3       disclosure in July 2007 and (c) more significant

           4       disclosure from the Azelle Rodney Inquiry during 2011

           5       and this year.

           6           As a result, I can, of course, see, even before the

           7       evidence is formally heard in court, that Azelle was

           8       suspected with good cause of being involved in a serious

           9       crime on 30 April 2005.  Two other men in the car also

          10       subsequently pleaded guilty to firearms offences.  But,

          11       to state the obvious, they were at least able to walk

          12       away alive on 30 April and have long since served their

          13       prison sentences, while it seems to me that Azelle was

          14       executed that day and as a result never even got to see

          15       his baby daughter."

          16           Just pausing there, may I just ask you, when was his

          17       daughter born?

          18   A.  The day before Azelle's funeral.

          19   Q.  And what's the date?

          20   A.  Well, it wasn't until late May, because the funeral

          21       wasn't held for quite a long time.  I just can't recall

          22       the date at the moment.

          23   Q.  "I also wish to make clear that, whilst I have seen a

          24       lot of evidence relating to the events leading up to and

          25       after Azelle's death, and I will hear more about this at


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           1       this inquiry, some evidence continues to be shrouded in

           2       secrecy and I remain worried that I am being prevented,

           3       and will be prevented, from seeing or hearing every

           4       single relevant piece of evidence.  I cannot help

           5       feeling that some evidence may still be suppressed.

           6           Also, I want everyone to know that I am angry about

           7       being denied a timely inquest, say in 2007, because it

           8       partly involved some people saying to me by my lawyers

           9       that I could not be trusted to see some sensitive

          10       evidence which left me feeling like a criminal or

          11       suspected criminal.  That is intolerable and unjust and

          12       the reasons given to me for not holding an inquest years

          13       ago are unacceptable.

          14           Despite all the above, I sincerely hope the inquiry

          15       will now leave no stone unturned in the search for the

          16       truth and accountability for my son's death, any lessons

          17       are now finally learned and that similar deaths in the

          18       future are made less likely."

          19           And you've signed that and there's a declaration

          20       that you believe your witness statement to be true, is

          21       that correct?

          22   A.  Yes.

          23   MR THOMAS:  Sir, there's only one matter, only one small

          24       matter --

          25   SIR CHRISTOPHER HOLLAND:  No, you feel free.


                                           152
 
           1   MR THOMAS:  -- that I want to ask about and can we have up a

           2       photograph of your son. (Picture shown).

           3           Sir, the photograph that we're about to see is the

           4       photo which is from the briefing pack that the

           5       surveillance officers had on 30 April and the question

           6       that I have is how does this photo compare, in terms of

           7       likeness, to your son in April 2005?

           8   A.  That's Azelle.  That's him.  It's an excellent likeness.

           9       True likeness.

          10   SIR CHRISTOPHER HOLLAND:  It's an excellent likeness?

          11   A.  Yes.

          12   MR THOMAS:  Sir, those were all the questions that I wanted

          13       to ask.

          14   (3.37 pm)

          15   SIR CHRISTOPHER HOLLAND:  Just a minute.  Mr Underwood?

          16   MR UNDERWOOD:  No, thank you.

          17   SIR CHRISTOPHER HOLLAND:  Anybody else?  Well, thank you

          18       very much indeed.

          19   A.  I just wanted to say thank you to you for coming out of

          20       retirement to take the inquiry as well.  It's important.

          21   SIR CHRISTOPHER HOLLAND:  You sound like my wife.  Thank you

          22       very much.

          23   (3.58 pm)

          24           10.15.  Now just mark my card for tomorrow.

          25   MR UNDERWOOD:  We have S2 followed by S1.  I apprehend that


                                           153
 
           1       they're not likely in fact to take all day, now that we

           2       have some answers by way of my learned friend

           3       Mr Collery's opening.  But nonetheless that's what we

           4       slated for tomorrow.

           5   SIR CHRISTOPHER HOLLAND:  Well, I mean, if I can just say

           6       generally, it's inevitably going to be difficult for you

           7       and the team to judge timing with the witnesses.  I

           8       mean, it's notoriously difficult in any litigation and

           9       it won't surprise me if, on occasions, we have a short

          10       day, on occasions we have a day overlapping into the

          11       following day.  These things happen.

          12   MR UNDERWOOD:  Thank you.

          13   SIR CHRISTOPHER HOLLAND:  10.15.

          14   (3.59 pm)

          15   (The hearing adjourned until 10.15 on Wednesday, 5 September)

          16

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                                           154
 
           1                              INDEX

           2                                                       PAGE

           3

           4
               Submissions by MS STUDD .............................62
           5
               Submissions by MS EVANS .............................67
           6
               Submissions by MR THOMAS ............................81
           7
               Submissions by MS LEEK ..............................84
           8
               Reply submissions by MR UNDERWOOD ...................87
           9
               Reply submissions by MS STUDD .......................90
          10
               Ruling
          11
               Procedural submissions
          12
               Opening submissions by MR COLLERY
          13
               Opening statement by MR GLASSON
          14
               Opening statement by MS STUDD
          15
               Opening statement by MS LEEK
          16
               Opening statement by MR THOMAS
          17
                   Susan Lorraine Alexander
          18
               Questioned by MR THOMAS
          19

          20

          21

          22

          23

          24

          25


                                           155