Transcript of the Pre Inquest Hearing 25 March 2013

           1                                         Monday, 25 March, 2013

           2   (11.00 am)

           3                       MARK DUGGAN INQUEST

           4                    (The hearing was delayed)

           5   (11.18 am)

           6   JUDGE CUTLER:  Yes, Mr Underwood.

           7   MR UNDERWOOD:  Good morning, sir.

           8           As you know, this is the further pre inquest hearing

           9       in relation to Mark Duggan's death.  I appear for the

          10       inquest.  For the Duggan family and for Precious Douaihy

          11       is Mr Mansfield, Queen's Counsel, Mr Thomas and

          12       Mr Straw.  For Z51 is Mr Butt, who is on my immediate

          13       left.  Then, to his immediate left, Mr Stern appears for

          14       the SC&O19 officers.  The Metropolitan Police Service is

          15       represented by Ms Studd, Queen's Counsel, and

          16       Mr Branston.  And Mr Tam, Queen's Counsel, appears for

          17       the IPCC.

          18           There has been an agenda circulated for this which

          19       starts on an update on progress by the IPCC.  Can

          20       I invite Mr Tam to give you that?

          21   MR TAM:  I'm grateful.

          22           Sir, since the last hearing, the trial of

          23       Kevin Hutchinson-Foster, which was still ongoing at the

          24       time, has concluded.  One of the effects of that is

          25       I can now say a little bit more than I was able to say
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           1       at previous hearings, at which I had had to be somewhat

           2       cryptic, if not Delphic, on occasions.

           3           Since the conclusion of that trial, we have been now

           4       able to assist your team by disclosure of the material

           5       that we had.  The material which can simply be

           6       transferred openly amounts to some 60 lever arch files

           7       in volume, and I understand that my learned friend

           8       Mr Underwood and the team are now engaged in analysing

           9       that and so on, which is a considerable task of work,

          10       that the IPCC have already previously been doing.

          11           The work that the IPCC is doing in relation to that

          12       evidence and also the other -- there is some other more

          13       sensitive evidence that is involved -- is now almost

          14       complete.  What I can now say is that one of the largest

          15       outstanding issues has arisen because of some

          16       differences of opinion and some questions asked by

          17       expert witnesses and expert advice that the IPCC has

          18       been getting.

          19           I hope it won't be too distressing if I just mention

          20       the subject matter of that.  There were two shots fired

          21       and two bullets that were found two in different places,

          22       and one of the issues that has been raised with us, and

          23       I think also ventilated at the trial, was which bullet

          24       related to which shot.

          25           I don't think I need to say anything more than that,
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           1       other than that that is a subject which we are going to

           2       explore as far as we can.  It may be that, ultimately,

           3       there will be a conclusive difference of opinion between

           4       the experts and we won't be able to take that any

           5       further.

           6           What we do not intend to allow that to do is to

           7       delay the completion of our report any further.  In the

           8       correspondence which has been disclosed to all the

           9       interested persons we have given the time frame for

          10       that: the report should be ready, I think it was, in the

          11       second half of April.

          12           Thereafter, some decisions have to be made in the

          13       context of the IPCC statutory framework, and then

          14       disclosure of the report, at least on a confidential

          15       basis, may be able to follow to some or all of the

          16       interested persons after that.

          17           So that is where we have got to with the main

          18       report.  At least now I have been able to say a little

          19       more than I have on previous occasions about the state

          20       of play.

          21           One of the other things I can also now mention which

          22       has been referred to in the correspondence is that there

          23       is a second IPCC investigation.  It relates to a matter

          24       to which Mr Hutchinson-Foster pleaded guilty but was

          25       obviously not ventilated at his trial.  It relates to
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           1       an assault which took place a number of days before

           2       Mr Duggan was shot.  I don't think I need to say

           3       anything more about that, than that there is the

           4       potential for some of the factual matters to be relevant

           5       to this inquest and that we anticipate that the

           6       completion of that report is possible within the same

           7       time frame as for the main report that I've just been

           8       outlining.

           9           What I understand from discussions with my learned

          10       friend Mr Underwood is that the work and he and his team

          11       are doing is now able to be done, in any event,

          12       independently of the completion of our report.  I hope

          13       that our reports, when they are completed, will assist

          14       him, the team and other interested persons.

          15   JUDGE CUTLER:  Thank you very much.

          16           Mr Underwood, would you like to advance any comment

          17       that you wish about that?

          18   MR UNDERWOOD:  Yes, if I may, that's very helpful.  Can

          19       I thank the IPCC.  We, as a team, had a choice to

          20       make: either we waited for the IPCC report and simply

          21       didn't check any of their work, or we asked them for

          22       everything, including work-in-progress, and launched off

          23       on our own work on the back of that.  We chose the

          24       second option.  So they have been extremely helpful in

          25       giving us all the work they've done, including the
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           1       work-in-progress, so -- the currently outstanding

           2       matters, and we are, as my friend rightly says,

           3       beginning to work on the basis of that.  But there are

           4       a number of files there, and the report itself,

           5       therefore, is rather secondary to our purposes.

           6           At the same time, we have also obtained something

           7       like 20 files of documents from The Metropolitan Police

           8       Service, again very helpfully, and again we're using

           9       that as the backbone for the work we're doing to prepare

          10       for the hearing in September.

          11           We have, of course, also obtained the transcripts of

          12       both the Hutchinson-Foster trials, and, again, I thank

          13       the IPCC for a large amount of the material from that.

          14           So it's that which we now have gathered, something

          15       like 90-odd files of materials plus some more yet to

          16       see.

          17           We are in the process of numbering those.  We have

          18       provisionally decided on what experts we're going to be

          19       adducing in evidence and, as Mr Tam pointed out, there

          20       may be some quite difficult decisions to make about how

          21       the experts appear in front of the jury.

          22           We've diverted very slightly from the process which

          23       we envisaged at the last hearing in terms of preparation

          24       for this.  One of the matters which we directed last

          25       time was that public interest immunity applications
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           1       should be made by those who wish to claim them.  What

           2       we're doing instead is undertaking a process of taking

           3       out of the papers things like irrelevant addresses of

           4       witnesses and irrelevant telephone numbers, rather than

           5       making that a duplication of effort between us and The

           6       Metropolitan Police.  As we do that, we're going to

           7       serve the documents in tranches on the owners of them,

           8       for them to see if they want to claim any other public

           9       interest immunity.  We anticipate very little by way of

          10       application on that, so what we anticipate happening is

          11       that, as we serve these documents in stages of the

          12       owners of the material, we get back the applications, if

          13       any, they're dealt with quickly, and then we serve the

          14       documents on the interested persons in tranches, so that

          15       we hope by 22 July everything will have been served in

          16       stages.

          17           We've not yet listed the witnesses.  That's

          18       something which was anticipated to have been done by

          19       now.  We, for our purposes, have a working list of

          20       82 witnesses.  I can't pretend that is anything like

          21       definitive, bearing in mind the large number of

          22       documents we have and some of the outstanding issues

          23       there are.  There are further issues that Mr Tam didn't

          24       mention; I won't go into them at this stage but they are

          25       still to be resolved both with the IPCC and with us as
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           1       to what witnesses are likely to be relevant.

           2           There are anonymity applications in play.  That's

           3       an agenda item I will come back to in some detail.

           4   JUDGE CUTLER:  Yes.

           5   MR UNDERWOOD:  You have made some provisional indications in

           6       relation to those and more work needs to be done in

           7       relation to that.

           8           This court was secured for the hearing in September.

           9       It was to take its turn after the Litvinenko inquest,

          10       which, regrettably, has been adjourned.  We're taking

          11       urgent steps to see, firstly, whether we can secure this

          12       court or, alternatively, another court within the Royal

          13       Courts of Justice, but certainly urgent steps are being

          14       taken to ensure we have a place to have this hearing

          15       in September.

          16           So we anticipate that by 22 July everything will

          17       have been done for service and by September we will all

          18       be ready for a hearing.

          19           That leads to the agenda item number 2, which is the

          20       hearing date.  Provisionally that has been set as at

          21       16 September.

          22   JUDGE CUTLER:  That is what was said last time.

          23   MR UNDERWOOD:  It is indeed.  There have been indications in

          24       correspondence that people might want to push that back

          25       by a week or so, but can I invite any representations
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           1       there are at this stage.

           2   JUDGE CUTLER:  Mr Mansfield, anything you wish to say at

           3       this stage?

           4   MR MANSFIELD:  Sir, yes.  Would you like me to address the

           5       issues that have been canvassed so far?

           6   JUDGE CUTLER:  No, the issues principally about timing

           7       firstly, please.

           8   MR MANSFIELD:  They are interrelated in any event, sir.

           9   JUDGE CUTLER:  Yes.

          10   MR MANSFIELD:  I do have a certain amount to say about the

          11       IPCC but can I just come back to the question of date.

          12       My learned friend Mr Thomas may want to say more about

          13       it but there is absolutely no question, so far as the

          14       families are concerned, that there can be no more

          15       slippage.  I think you're more than aware of the history

          16       of this case.

          17   JUDGE CUTLER:  No, I want to reassure you and the family

          18       straight away that I too am equally adamant about this.

          19       There might be a slippage of a day or two or perhaps

          20       a week, I'll hear what Mr Thomas has to say, but I am

          21       determined that this inquest will begin in September.

          22   MR MANSFIELD:  We're most grateful for that.  I don't have

          23       any applications about pushing it back a day or so or

          24       even a week, so, as far as we are concerned,

          25       September 16.  That is important, if I can work
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           1       backwards, because that sets an agenda for the period

           2       between now and then.  We have proposed a timetable but

           3       if I can just indicate this: there plainly will have to

           4       be another hearing date between now and September 16 in

           5       order to, if it's necessary, for example, for the

           6       anonymity applications to be fleshed out, or the public

           7       interest immunity applications, should there be any

           8       unresolved, to be fleshed out, for the question -- it

           9       hasn't been touched on yet -- of jury selection and so

          10       on to be dealt with.

          11           Can I just go back to the beginning, in a sense.

          12       The concerns that the family have, so far as the

          13       observations made by Mr Tam, I think I just want to

          14       spend a moment on this because we hear what the IPCC say

          15       and it is not accepted.  There is a sorry tale in this

          16       case of delay, obfuscation, unwillingness to be pinned

          17       down to a date and, even when a date is suggested, the

          18       date isn't kept to.

          19           Now, may I just illustrate this is not an idle

          20       matter, and I'm afraid that is why we are asking you

          21       today in fact to fix a date by which the IPCC have to

          22       produce their report.  We have suggested May, I would

          23       suggest 1 May.  That's a generous application of time

          24       because the knock on is the matter that has already been

          25       outlined, namely that other decisions depend on what
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           1       that report says.  And if it's too close to September,

           2       we anticipate exactly the same problems that have

           3       happened in the past: we'll lose the date again, or we

           4       might do, it's put at risk.

           5           Now the problems with the IPCC have been -- I deal

           6       with them quickly but it just demonstrates the

           7       magnitude, we say, not of just delay but incompetence by

           8       the IPCC -- and I'll illustrate it by a few examples

           9       but, to begin with, they were delayed in terms of

          10       getting to the scene and taking control and initiating

          11       proper lines of inquiry.  So it starts back at the

          12       scene.

          13           They were delayed in terms of proper communication

          14       and liaison with the family.  I don't go through the

          15       details, these are just the headings.

          16           And when they initially came to the Coroner's Court

          17       with dates, as well as to the Home Affairs Committee,

          18       this is what was originally said about the report --

          19       now, either they have no idea how to conduct a report,

          20       because they shouldn't have given this estimate, but the

          21       estimate originally was that it would be three months.

          22       This was August 2011, so roughly November 2011 was the

          23       original date anticipated for the report.  However,

          24       a little later in August 2011, the time span was

          25       extended slightly, a 4 to 6-month period before
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           1       a report.  In other words, that it would be, from that

           2       date, likely to be between December 2011

           3       and February 2012.

           4           Well, that may be understandable.  However, by the

           5       time of a hearing in December 2011, that date had

           6       changed, and the court was told that it wouldn't be

           7       complete, but the word was "will be completed".  Now,

           8       they knew by this time about correlative investigations

           9       in the Foster case, so, in my submission, they can't

          10       claim that that was the complication.

          11           Then they said it would be April 2012.  In March, it

          12       changed again.  The final report was being written, it

          13       was said, in March 2012, and would be completed by the

          14       early summer of last year.  Of course, this was

          15       important because there was no disclosure going on at

          16       that stage and the coroner was desperate to get

          17       disclosure so he could assess whether he was in

          18       a position to conduct an inquest.  It was absolutely

          19       vital.  Then just again to emphasise the magnitude of

          20       incompetence here, on 28 June, when the coroner

          21       actually, and virtually, issued an ultimatum to the

          22       IPCC, firstly they refused to give a date for disclosure

          23       in court, they wouldn't even give a month as to when

          24       they would do it.  The coroner used the words

          25       "extraordinary behaviour", it was his term,
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           1       "extraordinary", and he equated that behaviour with

           2       contempt of court and actually posed the question to

           3       the IPCC as to whether, in fact, their conduct was

           4       tantamount to that, and he used these words:

           5           "I will take it to mean that my statutory

           6       obligations are being interfered with and the family

           7       will likely have to undertake necessary precautions."

           8           In fact, he issued a date at that time; the date he

           9       issued was 26 July.  Well, it won't surprise you to know

          10       that that date was not kept.  There was some disclosure

          11       but not extensive.  Basically, it's at the behest of the

          12       IPCC.  They do what they want when they want to.  And

          13       they do not respect -- it's an unfortunate position to

          14       be in -- they do not respect the court and have not

          15       respected the court.  Leaving aside the family's

          16       feelings, which is bad enough.

          17           In fact, the only way in which disclosure ultimately

          18       was forced upon the IPCC was that the family had to

          19       threaten judicial review proceedings because it was

          20       interfering with the investigatory duties and

          21       obligations of the inquest and, finally, there was

          22       disclosure by November last year.

          23           So, in other words, it has taken well over a year to

          24       get -- it wasn't full disclosure -- to get disclosure.

          25           So the position here is, as you can see, that the
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           1       family do not believe a word they're being told on this

           2       front.  Without your authority, indicating to the IPCC

           3       that enough is enough, without the threat of legal

           4       action by the family yet again -- and you will recall

           5       when you asked on 28 January this year, Mr Tam said he

           6       didn't want to be pinned down to a date.  What you

           7       indicated then was that you hoped it would be ready for

           8       today, and in fact, because of that, suggested that it

           9       should be available by the end of February.  Well, that

          10       hasn't happened.

          11           Now, the reason for these delays is quite

          12       instructive.  We say the reason is because there has

          13       been incompetence from the beginning.  Now, I don't know

          14       whether you have the letters that have been sent by the

          15       IPCC to those that represent you?

          16   JUDGE CUTLER:  Yes.

          17   MR MANSFIELD:  If you do, I would ask you just to look at

          18       these.

          19   JUDGE CUTLER:  I certainly have some before me; I may not

          20       have them all.

          21   MR MANSFIELD:  One is dated 28 February this year.  There

          22       may be more but there is another one dated 15 March.

          23   JUDGE CUTLER:  I will make sure I have those before me.

          24   MR MANSFIELD:  I will take them in that order.  28 February

          25       (Handed).
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           1   JUDGE CUTLER:  Thank you very much.

           2   MR MANSFIELD:  If you are kind enough just to look at

           3       28 February.

           4   JUDGE CUTLER:  Yes.

           5   MR MANSFIELD:  It isn't a page but it's paragraph -- well,

           6       it should be 6 but it isn't that, it's the page headed

           7       "Evidence being acquired by the IPCC investigation: next

           8       steps".

           9   JUDGE CUTLER:  Yes, I have that.

          10   MR MANSFIELD:  Now, one does appreciate, obviously, if

          11       experts change their mind, you may have to modify,

          12       however one of the key areas we say has not been handled

          13       adequately from the beginning -- we say this because

          14       I think I mentioned it on the last occasion, Mr Sparrow,

          15       who is in charge of the investigation, gave evidence in

          16       2011, and I was permitted the opportunity to ask him

          17       questions about progress, and the most dramatic outcome

          18       of that was that there weren't any answers forthcoming

          19       on a lot of fronts.  One of them was ballistics.  You

          20       don't have to wait two years to discover the size of

          21       a bullet hole, the trajectory and all the rest of it.

          22       These are investigations that should have happened in

          23       2011.  It appears that virtual reconstructions weren't

          24       approached until November.  Well, late, but not

          25       too late.
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           1           However, you see on that page that having at this

           2       stage to resolve the question of the bullets is bad

           3       enough, but at the bottom of the page it's very

           4       interesting what hasn't happened.  This question of

           5       a virtual reconstruction was exactly one of the

           6       questions I put to Mr Sparrow in the autumn of 2011.

           7       It's basic in any shooting case.  The attempt to

           8       reconstruct trajectories on a dummy, so you know -- I'm

           9       sure you're very familiar --

          10   JUDGE CUTLER:  No, I am familiar.

          11   MR MANSFIELD:  If you look at this, they say

          12       in February: they have confirmed that they will provide.

          13       In other words, by February of this year, they had not

          14       provided the four items that are spelt out there.  In

          15       other words, injuries: illustration of positions of the

          16       injuries.  Well, that is pretty straightforward.  That

          17       could've been provided ages before.

          18           The second one, most important this one, Mr Duggan's

          19       jacket.  A series of annotated images of the torso of

          20       Mr Duggan's jacket illustrating the lining up of the

          21       holes as detailed by the ballistics experts.

          22           If you like, the obtaining of a mannequin, the

          23       clothing, and lining up of holes in order to assess the

          24       angle and position of the body when it was shot, should

          25       have been done in the autumn of 2011.  The fact that it
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           1       hadn't even been done by this stage -- and may I just

           2       ask you to mark that -- it doesn't appear to have been

           3       done even now, because the second letter doesn't

           4       actually deal with that aspect of it.  I will come to

           5       that in a moment.

           6           The third item is event reconstruction.  There they

           7       are saying it's not possible, actually, to do it

           8       precisely.  Well, I leave comments on that.

           9           Fourth, sideline to gun location.  That, again,

          10       could have been done a year ago.  They say they will

          11       provide it by 13 March.

          12           Now, to save me coming back to this letter, there is

          13       at least one other matter on this letter which we find

          14       to be an appalling omission.  "Further outstanding

          15       evidence", you will see that heading, "we are awaiting

          16       statements from" -- I don't go through them all, I just

          17       take one of them, the second one:

          18           "A statement concerning whether any covert aerial

          19       asset was used in the operation."

          20           Well, I think that means, and we all take it to

          21       mean, either film or audio recording from the air.  Now,

          22       that can take place in a variety of forms, the most

          23       obvious being a helicopter, but there are other ways of

          24       doing it.

          25           Now, before you even consider finalising a report
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           1       in 2011, which was their original position, the one

           2       thing you do is say to the police "Was there somebody in

           3       the sky?"  It's very simple.  Now, either they didn't

           4       ask that question, which I suspect they didn't, or if

           5       they did, it has been a long time coming, the answer,

           6       because that is a question we'll see in the next letter

           7       that still hasn't been answered.  It could well be, of

           8       course, there's none.  That's an easy one to answer.

           9       The MPS just say to the IPCC, "Sorry, there wasn't any,

          10       can't help you".  On the other hand they can say, "There

          11       was one, but it wasn't ..."  You know the answers.

          12           This, if I may say so, is a contextual matter of

          13       considerable importance, and that they are prepared to

          14       consider a final report without that -- because, as you

          15       will see, if I can turn just to the next letter quickly,

          16       15 March, we have on 15 March the ongoing controversy

          17       over bullets in the first paragraph.  Most unfortunate,

          18       but there it is.  But then if you look at virtual

          19       reconstruction, you run through what has been provided

          20       and it does not deal with the basic dummy situation,

          21       I am going to put it in that way.  It's not there.  I am

          22       not saying they haven't done it, but if they have done

          23       it they haven't put it in there.

          24           If you, as it were, go on to matters that are

          25       outstanding, you will see that in fact, as far as aerial
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           1       intelligence is concerned, that is still outstanding.

           2           So they still don't know whether there was any

           3       aerial intelligence.

           4           But also this letter, it may be a mistake, one wants

           5       to be as understanding as possible, but if you look at

           6       paragraph number 8, "Unused statements and unused

           7       documents".  On that page they claim they haven't

           8       received -- that's the IPCC -- any requests for specific

           9       items of scheduled, unused material from the

          10       representatives of Mr Duggan's family.  Well, that's

          11       just not true.

          12           Last time we handed in a schedule, you may perhaps

          13       remember --

          14   JUDGE CUTLER:  Had a reference to it but I didn't see it.

          15   MR MANSFIELD:  What I did was, on that occasion, indicated

          16       I wouldn't take up court time by indicating the

          17       disclosure we've not had, I'd just present the document

          18       headed "Disclosure sought by family".  Now, it's

          19       five pages of requests.  There has been no response to

          20       this and certainly no disclosure.  So, once again, the

          21       IPCC, or those responsible within the IPCC for doing

          22       this, have plainly failed.

          23           If you need any more explanation, at least as to

          24       their competence, which we say is now virtually to be

          25       described they are just not fit for purpose, let us look
                                            18
 

 

 

 


           1       at the final letter in this context, 22 March.  Do you

           2       have that in the --

           3   JUDGE CUTLER:  Yes.

           4   MR MANSFIELD:  This is dealing with --

           5   JUDGE CUTLER:  Let me see if I have that.  22 March.

           6   MR MANSFIELD:  It's a very short letter, it was addressed,

           7       in fact, to us, that is to my instructing

           8       solicitors, but we anticipated the same letter or words

           9       to the same effect have gone to your --

          10   JUDGE CUTLER:  No.

          11   MR MANSFIELD:  There's a spare copy.

          12   JUDGE CUTLER:  Thank you very much (Handed).

          13   MR MANSFIELD:  Yes, I'm sorry.

          14           Before just looking at a part of this letter

          15       addressed to my instructing solicitor on 22 March, so

          16       it's very recent, the IPCC must have known in 2011,

          17       because everybody else did, and in fact they informed

          18       the family at one stage, about what I have called the

          19       correlative investigation into the Foster case.

          20           So they must have known at that stage that there

          21       could be an extremely important issue here.  And that

          22       is, one of them anyway, why wasn't the individual

          23       concerned, that is Mr Foster, arrested at some earlier

          24       stage?  But much more important than that is this issue,

          25       this case, it's not amongst the core issues -- I am not
                                            19
 

 

 

 


           1       suggesting they are finalised by any means -- but one of

           2       the core issues I think will be: how was this gun,

           3       identified at an earlier stage, allowed to get back onto

           4       the streets?

           5           So the Metropolitan Police handling of an earlier

           6       incident which involved a firearm must have been known

           7       in 2011, which means they either have done very little

           8       or nothing in relation to that possible connection, not

           9       a difficult thing for them to have worked out.

          10           However, the letter we get on 26 March indicates

          11       that, in the course of our discussions -- I don't know

          12       everybody they've discussed it with -- we

          13       concluded there were questions which the community and

          14       wider public would expect to be answered within the

          15       report which we have not fully addressed.

          16           Well, just how long does it take an investigator to

          17       work out or somebody to work out the connections between

          18       the two cases and the questions which the wider

          19       community would want answered?  Connections to do with

          20       the safety of the community, if no other.  And that

          21       therefore, it has led us to undertake a further review.

          22       Then it deals with where the review is focusing.

          23       Therefore, they can't currently give a date when we

          24       expect to be able to issue the report.

          25           This, again, on top of everything else, is
                                            20
 

 

 

 


           1       intolerable.  It cannot be permitted to go any further

           2       along these lines with this kind of, as we say,

           3       malpractice, because that's what it is, and we would

           4       ask, therefore, the culmination of all of this is, that

           5       you today do set the date by which this report has to be

           6       finalised.  They have to get on with the job.  There

           7       cannot be any more excuses.  And the Hutchinson-Foster

           8       trial, they knew what the issues were, there was a trial

           9       back in September last year, they knew what was coming

          10       up, they knew what the issues were.  So, as I say, this

          11       did not require further adjournment.

          12           So, in terms of that issue, getting the IPCC to do

          13       their job, is something that the family would ask

          14       sincerely that is addressed today.

          15           I don't know the other issues that have been

          16       canvassed -- yes, there are three.  Yes, sorry, there

          17       are two reports, it's 1 and 3.  Sorry, yes.  I won't

          18       deal with the question of witnesses for the moment, and

          19       the witnesses -- I understand the problems.  Anonymity

          20       maybe I'll have to come back to.

          21   JUDGE CUTLER:  Shall I see what Mr Tam has to say to what

          22       you have just told us?  Mr Tam, help us please.

          23   MR TAM:  Sir, much of this you heard on the last occasion.

          24   JUDGE CUTLER:  That is why I was quite keen you should do

          25       your report by 28 February.
                                            21
 

 

 

 


           1   MR TAM:  Indeed.  You will have detected, and those who

           2       attended previous hearings before your predecessor in

           3       this case, will have detected that whenever we say that

           4       we are going to try to produce the report by a certain

           5       date, understanding as we do the family's keenness to

           6       have the report as soon as possible, we are criticised

           7       if things are discovered that mean that that date is not

           8       achievable.  And there have been a number of things

           9       which have got in the way of that.  Most recently, that

          10       there has been the failure of the first

          11       Kevin Hutchinson-Foster jury to agree, the occurrence of

          12       the retrial, the further evidence that has been obtained

          13       from that retrial, and the need to analyse that.  That's

          14       just one example of the things that have cropped up

          15       during the course of the investigation which has meant

          16       it has necessarily been longer than it was hoped that it

          17       might have been at earlier times.

          18           Whenever we have an indication that has been missed

          19       we get criticised for that.

          20           You will also have detected that whenever we can

          21       foresee that a problem might arise and that it would be

          22       unwise to give a date for the report, we are criticised

          23       for that.

          24           So what I can tell you, now that we have

          25       an opportunity of discussions with my learned friend
                                            22
 

 

 

 


           1       Mr Underwood, and so that he is in the loop, and now

           2       that he and your team know the volume of material that

           3       has been looked at and has had to be considered, the

           4       date that we have given you is a realistic date for

           5       this, because now that the Kevin Hutchinson-Foster --

           6   JUDGE CUTLER:  What is the date?  There are two stages.

           7       One, the actual report from your lead investigator is

           8       actually completed, but then it goes to the

           9       Commissioner, and then it comes out.

          10   MR TAM:  Yes, that's right, the Commissioner, when satisfied

          11       with the report, then needs to make the decisions that

          12       the statute requires her to make, and that will then

          13       have a bearing --

          14   JUDGE CUTLER:  When do you say that the Commissioner will

          15       receive the report?

          16   MR TAM:  The second half of April.

          17   JUDGE CUTLER:  Second half of April?

          18   MR TAM:  Yes, so the decision-making should be capable of

          19       being done in the early part of May.

          20   JUDGE CUTLER:  Are you willing to put your Commissioner on

          21       the line as to when she will actually come to her

          22       conclusions?

          23   MR TAM:  If --

          24   JUDGE CUTLER:  Actually give a date?

          25   MR TAM:  If I was pushed, sir, I think I would have to
                                            23
 

 

 

 


           1       respectfully decline that, because one simply -- there

           2       are still some lines of inquiry outstanding.  My learned

           3       friend Mr Mansfield has made points about whether or not

           4       they could have been done earlier; this is not the time

           5       or place to go into the detail of that.

           6           I would not want to commit to an absolute deadline

           7       if that might then get in the way of the report being

           8       properly completed.  But we are giving you in good faith

           9       the best estimate that we can of when this can be done.

          10           As you know, in the past there have been things

          11       which were foreseeably going to be a problem, including

          12       the Kevin Hutchinson-Foster trial, as it was at one

          13       stage, and the fact that there was going to have to be

          14       a retrial.  Those are things which we could foresee

          15       might delay the report.  Those things are now gone.

          16           And, as I have said to you, and I am now able to

          17       say, we may reach a point where there are differences of

          18       expert opinion where we'll simply have to say: well,

          19       that's that, the experts differ on this.  And we'll have

          20       to do the best that we can in the light of that.

          21   JUDGE CUTLER:  Yes.

          22   MR TAM:  Fundamentally, sir, the inquest is an exercise in

          23       which you inquire into what happened on 4 August 2011.

          24       It may be that there are things of which my learned

          25       friends Mr Mansfield and Mr Thomas would like to
                                            24
 

 

 

 


           1       complain about how the IPCC has investigated that, but

           2       these proceedings are for you to investigate that, on

           3       the basis of the evidence which we have now been

           4       assisting --

           5   JUDGE CUTLER:  No, I want to say openly, Mr Tam, that my

           6       team have been impressed by the amount of materials that

           7       they have been receiving from you, and quite clearly

           8       there has been, certainly in recent months, an enormous

           9       amount of work being done.

          10           The difficulty is we have got to a stage whereby,

          11       because we are now so keen to ensure that the inquest

          12       begins with its jury in September, we are just going

          13       ahead with that material without, perhaps, having the

          14       benefit of any -- a finalised report from you.

          15   MR TAM:  I think I would be as disappointed as anybody else

          16       if the report wasn't ready by the time of the inquest

          17       starting in the middle of September.  That is certainly

          18       not what we have in mind.  But at any rate, the

          19       important thing, it seems to us, is that you and your

          20       team have the raw material which will be the evidence

          21       considered by you in this inquest.  And then, when the

          22       report is ready, I hope that that will be of as much

          23       assistance as possible to your efforts in conducting the

          24       inquest.

          25   JUDGE CUTLER:  Thank you very much.
                                            25
 

 

 

 


           1           Mr Underwood, can you assist me at all at this

           2       stage?

           3   MR UNDERWOOD:  I have great sympathy, if I may say so, for

           4       the Duggan family for the delays there have been about

           5       this.

           6   JUDGE CUTLER:  Yes.

           7   MR UNDERWOOD:  So far as I am concerned, my principal

           8       interest is in getting the materials upon which I can

           9       build evidence to adduce before the jury in September.

          10       I am confident I can do that.  But the underlying

          11       difficulty perhaps that this all causes, which Mr Thomas

          12       raised last time, was that if the IPCC refer any matter

          13       to the Crown Prosecution Service, when they do report,

          14       then that might lead to a delay which would undo our

          15       hearing date.  That's the great risk, if there's any

          16       further delay.  Having said which, I am conscious that

          17       the IPCC is very well aware of that risk and is doing

          18       its best now --

          19   JUDGE CUTLER:  That risk exists and would happen whether

          20       they reported tomorrow or in a month or two, wouldn't

          21       it?

          22   MR UNDERWOOD:  Yes, although obviously the earlier they

          23       report --

          24   JUDGE CUTLER:  The sooner we know exactly where we stand.

          25       I understand that.
                                            26
 

 

 

 


           1   MR UNDERWOOD:  It's worth pointing that out.  Having said

           2       that, I don't see you have any powers to require the

           3       IPCC to conduct its strategy functions in any different

           4       way.

           5   JUDGE CUTLER:  I note that, and hold the Commissioner in

           6       contempt of court.  All I can do is encourage, as I have

           7       done, I think last time and this time, although

           8       Mr Mansfield might have given me some other thoughts,

           9       but at the moment just encourage them to complete their

          10       tasks as soon as they practically can.

          11   MR UNDERWOOD:  Yes.

          12   JUDGE CUTLER:  Thank you very much.

          13           Mr Mansfield, Mr Thomas, either of you.

          14   MR MANSFIELD:  Yes, I mean what is an interesting -- I don't

          15       say it's a slip by Mr Tam -- but an interesting aside,

          16       the idea that it might occur, he hopes it won't, that

          17       the report is available on the first day of the inquest.

          18       Well, this is entirely unacceptable for anyone to be

          19       even thinking that.  We say that this is very close to

          20       the knuckle.  I appreciate the inquest is not the place

          21       for reviewing the behaviour of investigative

          22       authorities, and plainly these are not issues -- they

          23       may come up in the context of certain witnesses, but

          24       that -- at this stage, the only reason for putting

          25       before you the narrative, if you like, the history of
                                            27
 

 

 

 


           1       incompetence in this case -- and we've put it that high

           2       because of the questions I originally asked were not

           3       answered -- because they hadn't started the job.

           4           Had they done that, we'd be much further ahead.

           5       I appreciate that's water under the bridge.  On the

           6       other hand, what the coroner last year indicated was

           7       that his investigative duty was being interfered with;

           8       it's on the cusp of contempt for an investigative

           9       authority like the IPCC to be basically saying "We're

          10       not going to give it to you".  Which is what they did.

          11       This wasn't anything short of that.  "We're not going to

          12       give it to you; we'll give it to you when we're ready";

          13       and even then they didn't give all of it.

          14           Now, the position here is, there's much more

          15       disclosure -- well, we appreciate Mr Underwood will, no

          16       doubt, assist in the disclosure exercise from the IPCC

          17       to us and I've given the indication of a list.  But we

          18       say you can make directions, which you did on the last

          19       occasion -- didn't include the IPCC, but, in my

          20       submission, just as you can indicate to an interested

          21       party -- and of course there was very early argument

          22       about whether the IPCC was an interested party, well

          23       they actually for the purposes of an earlier hearing

          24       accepted that they were, in order to make submissions.

          25           Now, if they're an interested party you're entitled
                                            28
 

 

 

 


           1       to make directions vis-a-vis interested parties like

           2       ourselves, and if we are in breach of those directions,

           3       that's a very serious matter.

           4           So we say you can say today, "I wish to have that

           5       report" or "I direct that report is available by 1 May".

           6       Plainly if something so unusual occurs, some extraneous

           7       event beyond their control, that might obviously have

           8       an effect but it doesn't have the effect on a report

           9       which was apparently being finalised a year ago.  So

          10       they must have got a lot written, or they haven't.

          11       Whichever it is, you're entitled, obviously before us,

          12       to see what the report has to say.  Because it's not

          13       only the decisions that are contingent upon it, namely

          14       the CPS and so on, and prosecutorial decisions, but

          15       there may be other lines of inquiry.  Because, as

          16       I understand it, those who represent you haven't seen

          17       some draft of the report or some -- no.  So, until you

          18       see the report and see how they've put it together --

          19       then you may say, "Oh, wait a minute".

          20           So the thinking of the IPCC is relevant to how

          21       evidence might be collated and presented.  So that's

          22       another aspect of this that has to be addressed.

          23           So I would ask for a direction today to the IPCC

          24       effectively to prevent any more of the delay that we've

          25       seen which has affected the family very greatly.
                                            29
 

 

 

 


           1   JUDGE CUTLER:  Thank you very much.

           2           Mr Thomas, you wanted to address the court?

           3   MR THOMAS:  Just a couple of matters.

           4   JUDGE CUTLER:  Yes.

           5   MR THOMAS:  Can I start on a related matter, which is venue.

           6       I understand that there are potential difficulties with

           7       venue --

           8   JUDGE CUTLER:  Yes.

           9   MR THOMAS:  -- in the light of the other case.

          10   JUDGE CUTLER:  I think we're both competing for this

          11       courtroom at the moment, and I think Mr Justice Owen has

          12       got there first.  We're looking into that.  I haven't

          13       got a conclusion.

          14           What I would like to say to you on venue is that

          15       I am determined, again, as much as I am as well on

          16       starting in September, that the inquest will be heard in

          17       London.

          18   MR THOMAS:  Yes.

          19   JUDGE CUTLER:  Either in this courtroom, should anything

          20       happen to his inquest, or indeed very close by, and

          21       we're making contingent inquiries at this moment.

          22   MR THOMAS:  On that point, it might be an idea, and I am

          23       sure your inquiry team are doing this, but it's best

          24       said in open court, I know that there are other

          25       potential venues which can be explored.  I have in mind
                                            30
 

 

 

 


           1       where the Tomlinson case --

           2   JUDGE CUTLER:  That's the first alternative choice.  We're

           3       looking at that now actively.

           4   MR THOMAS:  I understand that there might be an issue in

           5       relation to access and (inaudible), and that might be

           6       something that might need working on, but certainly that

           7       is an alternative that should be actively considered.

           8           Another venue which was mooted at one stage, and

           9       I think came off the agenda, was there was talk earlier

          10       on about Hornsey Town Hall.  I understood that there

          11       needed to be some work done to that building and when

          12       the High Court, this court, came up, that was taken off

          13       the agenda.

          14   JUDGE CUTLER:  All right, yes.

          15   MR THOMAS:  I don't know whether that is something that --

          16   JUDGE CUTLER:  I don't think we've made any inquiries about

          17       that aspect, no.

          18   MR THOMAS:  It may well be that time would be tight if that

          19       needed some refurbishment work, but that's certainly

          20       something that ought to be considered.

          21   JUDGE CUTLER:  I complete agree with you.  We're making

          22       active inquiries.  The sooner these things are worked

          23       out, the better.

          24   MR THOMAS:  I'm not going to say anything else about venue

          25       at this stage but can I touch upon another issue which
                                            31
 

 

 

 


           1       concerns me and I believe should concern this court, and

           2       that's in relation to the timetabling and timing.

           3           So far we have had disclosed to us I believe about

           4       six file, six lever arch files of documents.  Those are

           5       the documents that Mr Mansfield talked about, the ones

           6       that we had to struggle to get hold of.  It is of

           7       concern, and we hear today that there is something like

           8       another -- well, I think there was mention of something

           9       like --

          10   JUDGE CUTLER:  90 altogether, yes.

          11   MR THOMAS:  -- 95.

          12   JUDGE CUTLER:  That includes a lot of unused and repetition,

          13       I think.

          14   MR THOMAS:  Obviously no one is going to suggest that all

          15       90 files will contain relevant material that you would

          16       want to put before the court and, later on, possibly,

          17       before a jury, I accept that; but the point is we've

          18       only had disclosed to us six of those files, and we

          19       ourselves would like to go through the process of

          20       determining -- and assisting you and making

          21       representations where necessary --

          22   JUDGE CUTLER:  Of course.

          23   MR THOMAS:  -- as to what is relevant or what may not be

          24       relevant.

          25           What concerns me is if we're talking about -- and
                                            32
 

 

 

 


           1       I've just been trying to unpick what Mr Tam has been

           2       saying because I have been listening very carefully just

           3       in terms of timetabling -- the IPCC report ready in or

           4       about mid to late April, then goes to the Commissioner,

           5       the Commissioner then has to make a decision in relation

           6       to the report, the report then goes to you --

           7   JUDGE CUTLER:  Should do.

           8   MR THOMAS:  -- to your team --

           9   JUDGE CUTLER:  I would expect, and I might actually have

          10       asked Mr Tam about this, whether at least he might

          11       submit to some sort of timing of a draft report, so that

          12       whilst they might want to redact some aspects of it for

          13       later consumption but at least we should have some idea,

          14       as Mr Mansfield quite rightly pointed out, as to how the

          15       whole matter has been collated --

          16   MR THOMAS:  I just got the feeling, and I do invite Mr Tam

          17       to correct me if my feeling is wrong, that it could be

          18       that before we, the family, get to see the report, we

          19       could be talking maybe mid-May, perhaps early June.

          20   JUDGE CUTLER:  I think the earliest is mid-May, I think from

          21       what he was saying.

          22   MR THOMAS:  So my feeling isn't wrong then.

          23   JUDGE CUTLER:  No.

          24   MR THOMAS:  Well, that really troubles me, because if we

          25       look at the work that needs to be done in a very short
                                            33
 

 

 

 


           1       period of time -- you know, if you're talking June,

           2       July, August, and then we're looking to start this case

           3       mid-September, I know from previous experience on a case

           4       not too dissimilar in terms of issues, we're going to

           5       have to have the arguments about disclosure.  And before

           6       we can have the argument about disclosure, even in terms

           7       of what is relevant to be put before the court, it needs

           8       to be disclosed.  When is it being suggested that that's

           9       going -- the actual bulk of the disclosure is going to

          10       take place?

          11   JUDGE CUTLER:  Well, the inquest team is going to be working

          12       on this straight away, and so I hope that we will be

          13       coming to the conclusions about what we have and what

          14       you can see and the form in which you can see it

          15       comparatively soon.  That's why we've had to put the

          16       idea of waiting for another court to one side and just

          17       get on with what we have.

          18   MR THOMAS:  Then, on top of that, we're going to have issues

          19       about PII.

          20   JUDGE CUTLER:  Hm-hmm.

          21   MR THOMAS:  And those issues can be quite contentious on

          22       a case like this.  I say that not meaning to, you know,

          23       make any empty threats, but I just know that those

          24       issues -- just looking at the Rodney case, there were

          25       issues in relation to disclosure that potentially could
                                            34
 

 

 

 


           1       have ended up in the High Court.  It just needs to be

           2       factored into --

           3   JUDGE CUTLER:  No, I understand that.

           4   MR THOMAS:  Then, sir, you come on to an issue that may well

           5       be contentious, and I know it's on your agenda, and

           6       that's the issue of screening, anonymity, you know

           7       potentially vetting those who can see the witnesses.

           8       That is an issue -- we're going to come on to it later

           9       on, I know it will be contentious, and again time needs

          10       to be factored into that.

          11           Then you touched upon the issue that I raised on the

          12       last occasion, which is the CPS.  The CPS needs to get

          13       this report, and the CPS needs to make a determination

          14       as to whether or not it's going to do anything.  I fully

          15       appreciate that what the CPS does is out of our hands.

          16       That's a matter for the CPS.  It's a completely

          17       different body that will look at these matters.  But

          18       what Mr Tam can assist us with is, firstly, whether

          19       there's anybody in the CPS that's teed up, ready to run

          20       with this, when the report is ready.  There's no reason

          21       why that those steps can't be put in place.

          22           This is a really high profile, dare I say it,

          23       contentious case.  We all know what happened in the

          24       summer of 2011.  We all know the public interest in this

          25       case.  So there's no reason why the CPS cannot be teed
                                            35
 

 

 

 


           1       up ready to run with this report so that if a decision

           2       is being made one way or the other, it's made quickly.

           3       And perhaps Mr Tam can help us with that.

           4   JUDGE CUTLER:  Yes.

           5   MR THOMAS:  So I just lay out those -- forgive me for

           6       speaking with a degree of pessimism but we have,

           7       rightly, good cause to feel pessimistic given the delays

           8       that we've had so far, sir.

           9   JUDGE CUTLER:  Thank you very much, Mr Thomas.  Let's just

          10       put Mr Tam on the spot again.

          11           We've heard what has been said.  Can I firstly just

          12       clarify with you, if we are expecting your investigator

          13       to conclude his report perhaps in a little bit less than

          14       month's time, then it goes to the Commissioner, is there

          15       a way in which we, at least as the coroner and the

          16       coroner's team, could receive some form of draft or

          17       outline of the report about a particular date?

          18   MR TAM:  Sir, that might be possible.  I think the person

          19       who would have the answer to that is not here today.  So

          20       I think it would require us to take instructions by

          21       telephone, if you wanted a specific assurance about it.

          22           However, if it is for the purposes of you and your

          23       team, I wonder if, to save time, it might be acceptable

          24       for us to take that request away with us, in the hope

          25       that we can do that in any event, irrespective of the
                                            36
 

 

 

 


           1       position with the final report.

           2           In any event, can I give some assurance about the

           3       final report.  If the draft report can be completed in

           4       the second half of April, as we've indicated in our

           5       letter, we do not expect the decision-making process by

           6       the Commissioner to be a lengthy one, and I would

           7       imagine that the decision will have been taken and,

           8       therefore, the identity of those to whom the report, the

           9       final report, can be disclosed, within a couple of

          10       weeks.  So --

          11   JUDGE CUTLER:  So by the middle of May --

          12   MR TAM:  By the middle of May.

          13   JUDGE CUTLER:  13 May would be quite a good date to aim for.

          14   MR TAM:  Yes.  Yes, I think that would be the Monday.

          15   JUDGE CUTLER:  Monday, 13 May, draft report.

          16   MR TAM:  So, if that would provide some assurance --

          17   JUDGE CUTLER:  I think that would very much --

          18   MR TAM:  -- that will give everyone a target to work to.

          19   JUDGE CUTLER:  Thank you.

          20   MR TAM:  I would, however, formally ask you to not make that

          21       a formal direction, and -- but if we have stated the

          22       date, we would like --

          23   JUDGE CUTLER:  I think I would like to make it a formal

          24       direction, although, obviously, with an idea of some

          25       sort of liberty to apply, so that if there is some real
                                            37
 

 

 

 


           1       problem, obviously that will be understood, but if it

           2       becomes a direction so it's there in print after today,

           3       then we can all aim towards that date.

           4   MR TAM:  Sir, yes, subject, then, to two things: if you

           5       would allow us liberty to apply on that if there are

           6       problems --

           7   JUDGE CUTLER:  Yes.

           8   MR TAM:  -- and may I formally reserve the position on

           9       jurisdiction.  I don't think I need to say anything more

          10       than that.

          11   JUDGE CUTLER:  I understand.

          12   MR TAM:  Can I, while I'm on my feet, mention one thing

          13       about the disclosure which was given before, as both my

          14       learned friends Mr Mansfield and Mr Thomas have

          15       mentioned it.  A number of lever arch files of

          16       disclosure were given in the late autumn of last year.

          17       The context of that was that it was at a time when your

          18       predecessor had set a date for the inquest hearing to

          19       begin at the end of January.

          20           Despite the fact that our investigations were still

          21       continuing, it was clear that we had to assist that

          22       hearing to go ahead by giving some disclosure, as

          23       a result of which we short-circuited the proper process,

          24       which would have been to give disclosure to the coroner

          25       for the coroner to review for relevance, and then to
                                            38
 

 

 

 


           1       give onward disclosure to the IPs, by ourselves taking

           2       on that function, rightly or wrongly, and giving direct

           3       disclosure to other IPs.

           4           Now that your team is able to do the review, we are

           5       anticipating that any further disclosure will go through

           6       the usual channel, as I think my learned friend

           7       Mr Underwood anticipates as well.

           8   JUDGE CUTLER:  Yes.  Thank you very much.

           9           Mr Underwood?

          10   MR UNDERWOOD:  Can I draw two things from that.

          11   JUDGE CUTLER:  Yes.

          12   MR UNDERWOOD:  The first is there appears to be no challenge

          13       to the notion that hearing date should be 16 September.

          14           The second is that, in terms of disclosure, that is

          15       a burden which my team is now to shoulder.  And the

          16       approach we're taking to disclosure will not be the

          17       normal one of relevance.  We will disclose documents if

          18       they can conceivably be seen to be relevant.

          19       Our process, basically, is to get rid of duplicates, and

          20       if anything could realistically assist in any of the

          21       issues which have so far been identified, they will be

          22       disclosed.

          23   JUDGE CUTLER:  Good.

          24   MR UNDERWOOD:  Can I move on, then, to the list of issues,

          25       which is the third item on the agenda?
                                            39
 

 

 

 


           1   JUDGE CUTLER:  Yes.

           2   MR UNDERWOOD:  At the last hearing I raised a number of

           3       matters which may well be of interest to the jury when

           4       we come to the evidence.  What we've done since then is

           5       identify the list of the core issues.  I've no doubt

           6       that from various sides there will wish to be

           7       subdivision of those issues and collaboration of them,

           8       and that's something which I will talk to my learned

           9       friends about over the weeks and months, and

          10       particularly when all the evidence is in their hands, so

          11       that they can see what is likely to arise in the mind of

          12       a jury.

          13           At this stage, I would respectfully suggest that

          14       we're better off with just core issues, with that in

          15       mind.  Unless anybody has any observations on that?

          16   JUDGE CUTLER:  No, the six issues, just because I can see

          17       a lot of those behind you look puzzled or unable to hear

          18       very clearly everything that is being said, the six

          19       issues that have been identified thus far to really be

          20       core issues at the inquest begun on 16 September, of

          21       this year, are these: number one, what was the

          22       intelligence about Mr Duggan and about his intentions on

          23       4 August 2011?  Two, was there any information available

          24       to the planners that did affect or should have affected

          25       the way the stop was conducted?  If so, was this acted
                                            40
 

 

 

 


           1       upon so as to minimise to the greatest extent possible

           2       recourse to lethal force?  Three, was the stop conducted

           3       in a location that minimised the greatest possible

           4       recourse to lethal force?  Four, was the stop conducted

           5       in a way that minimised the greatest possible recourse

           6       to lethal force?  Five, when Mr Duggan exited the

           7       minicab, was he in possession of a handgun?  Finally,

           8       six, was each shot fired by the police officer

           9       absolutely necessary?

          10           Those are the six core issues that have been

          11       identified but, as you say, other parties can, of

          12       course, make their submissions about it, or indeed

          13       develop issues that come from those ones.  I see no

          14       objection to that as to being the identified list of

          15       issues at this stage.

          16   MR UNDERWOOD:  I am grateful.

          17           Can I move on to the fourth agenda item, then, which

          18       is the question of when there should be a further

          19       hearing and what other timetable questions arise.

          20           Now, sir, what I would respectfully suggest is that

          21       we work backwards.  This is a hearing which is going to

          22       take place in September of this year.  Everybody needs

          23       to be in possession of the materials, we've I think all

          24       agreed, by 22 July.  As I've suggested, that will be

          25       done in stages as of now.
                                            41
 

 

 

 


           1           What I would respectfully suggest is that you set

           2       a further hearing a little before 22 July just so

           3       everybody knows they have something to keep them up to

           4       the mark.  So say 15 July.

           5           And that everything else should be dealt with as

           6       soon as practicable.

           7           Now, I know when we come on to it, there will be

           8       issues such as anonymity and so on which may require

           9       further hearings, but they can be dealt with by way of

          10       agreement, I hope.  That's my proposal at the moment.

          11   JUDGE CUTLER:  The material will be sent across as it

          12       becomes available, not held back until a final date, so

          13       that everyone should have them as soon as we have them

          14       and are able to disseminate.

          15   MR UNDERWOOD:  Yes.

          16   JUDGE CUTLER:  Good.  Any thoughts about that?

          17   MS STUDD:  May I raise one issue about the new disclosure?

          18       Am I right to assume the disclosure we've had can

          19       effectively be shredded and we're going to be working

          20       from the new bundles?

          21   MR UNDERWOOD:  Yes, that's absolutely right.  You are bound,

          22       under the rules, to have every page numbered, starting

          23       with the letter C, so what we've had to do is take the

          24       existing disclosure and re-number it.  There will, of

          25       course, be further disclosure, so whether my friend
                                            42
 

 

 

 


           1       wants to shred it or re-number it is a matter for my

           2       friend, but we will serve, quite quickly, the material

           3       already served with new numbers.

           4   JUDGE CUTLER:  Yes.

           5   MS STUDD:  Thank you.

           6   MR MANSFIELD:  Just on the question of the next hearing and

           7       the date, or at least one of the next hearings, it's

           8       running pretty fine for the next hearing, or

           9       a determinative hearing, to be -- shortly before

          10       the July -- the final disclosure, because of all the

          11       knock on applications that might occur.

          12           I'm only, as it were, anticipating the worst case

          13       scenario, and one has to recognise that there might be

          14       might be further applications.  For example, there may

          15       be no PII applications that need to be argued about,

          16       there may be no anonymity to be argued about, there may

          17       be no problem about the family seeing, but if that is

          18       going to be ironed out, I would ask for an earlier date

          19       than that.  So, for example, particularly because our

          20       sanguine approach to the IPCC's response to date,

          21       I would ask for one shortly after, just to see how it

          22       goes, the date which hopefully you will direct for the

          23       draft report being at least disclosed to yourself.  So

          24       the first week of June I would suggest.  Then if these

          25       other matters to do with PII, anonymity and so on have
                                            43
 

 

 

 


           1       to be resolved, but they are not resolved in a way that

           2       satisfies various parties, any other further

           3       applications, there's just enough time to deal with

           4       that.  Because the later it becomes into July -- August

           5       is going to be impossible, I would think, to launch

           6       other matters.  So it seems to me we have to have it

           7       resolved by the end of July.

           8   JUDGE CUTLER:  Well, certainly, I'm happy -- I think what

           9       we're doing is just fixing a date where we can look at

          10       in July where hopefully all this has been done.  Between

          11       now and then, whilst I have other things to do, I am

          12       always available inasmuch as we can fix up any hearing

          13       with a reasonable notice, and we can probably come here

          14       and discuss matters at that stage.  So that if, for

          15       example, it's thought, when we see what the position

          16       we're in in May, that it would be useful to have

          17       a hearing in the first week of June, then, for my part,

          18       I'm always available to do that.  I'm available

          19       throughout August, unfortunately perhaps, but we don't

          20       have vacations, and so that -- it's very important, you

          21       are absolutely right, that if there are matters that

          22       need some form of hearing that that will happen.  But

          23       I think we're all aware.  So no doubt your team can

          24       contact my team and we can work out any other ancillary

          25       hearings that may be necessary.
                                            44
 

 

 

 


           1   MR MANSFIELD:  We appreciate the flexibility.

           2   JUDGE CUTLER:  Thank you very much.

           3           Yes, Mr Underwood.

           4   MR UNDERWOOD:  The next item on the agenda is jury

           5       anonymity.  I know this is a matter you raised of your

           6       own volition.  May I invite you to ventilate it.

           7   JUDGE CUTLER:  The only position about this is there may be

           8       anonymity of witnesses.  We've looked at that, and we're

           9       going to be talking about that in a moment, and it may

          10       be that the way that is principally the thought of the

          11       court is that it's very important for all witnesses to

          12       come here and to be comfortable and able to give

          13       evidence as fully and as truthfully and as openly as

          14       possible.  If they are assisted by anonymity, all well

          15       and good.

          16           Similarly, it's very important, it seems to me, that

          17       those who are on the jury should feel they should be

          18       able to concentrate on the evidence and come to their

          19       conclusions that they will need to come to in due course

          20       without them feeling in any way uncomfortable that their

          21       names may be known to those involved in this matter.

          22           There is increasingly a practice in the criminal

          23       courts, in long cases involving a number of matters,

          24       that jurors are just simply given letters, A, B, C, D,

          25       E, F, G, and they are called in -- they are still
                                            45
 

 

 

 


           1       randomly selected.  I shall know their true names if

           2       there is anything that should be remotely of importance,

           3       but it seems that there's nothing actually very

           4       important in a juror's true name -- it may be it's

           5       decided there's nothing particularly important in

           6       a police officer's true name, as long as we know who

           7       that person is and I have that information.

           8           But that's why I've put it out there for everyone to

           9       think about.  I am not going to come to any conclusions

          10       today but it seems to me that this may be one of those

          11       cases that there may be an advantage so that everyone

          12       can be comfortable both in giving of evidence, but

          13       certainly sitting on a jury, in coming to hear the

          14       evidence and coming to their conclusions.

          15           So that's why I have put it on the list, so you can

          16       be aware that that's in my mind, and we can look at

          17       that.  There needs to be no real decision about it,

          18       although obviously I would like to come to a final

          19       decision, perhaps by that hearing in July that we've

          20       mentioned, and I will hear any representations before

          21       then that anyone may have.

          22   MR UNDERWOOD:  Yes.  As I understand it, in an ordinary jury

          23       trial, the jurors are called forward by name before they

          24       are given the jury notes, and all that is being

          25       suggested here is that they are not called forward by
                                            46
 

 

 

 


           1       name.

           2   JUDGE CUTLER:  No, each juror will be given, if you have

           3       26 people, a letter of the alphabet and they are called

           4       forward randomly in that way, but that will be the only

           5       difference, and they take the oath or affirmation in the

           6       way that is required of them and participate as before.

           7           What may be something which we may want to look at

           8       is whether, if we are sitting here or in the centre of

           9       London, if we want to, say, have any particular

          10       questions for the jury, or whether we want jurors who

          11       are not from north London or whether we want them that

          12       are from north London.  All those things can be looked

          13       at again in the next hearing, in the July hearing.

          14   MR UNDERWOOD:  That, in fact, leads on to something I was

          15       about to raise, which was the 8th item on the agenda,

          16       jury selection.

          17   JUDGE CUTLER:  Oh, yes.

          18   MR UNDERWOOD:  I was going to raise it here anyway, sir.

          19       Had this been an inquest in the ordinary course, then it

          20       would have been heard in Barnet, and the jury would have

          21       been selected from the area more or less local to where

          22       Mr Duggan lived.  A possibility is that we should still

          23       choose the jury from that area wherever we may end up

          24       sitting.  That's why that's on there.  I wonder if

          25       anybody has any comments on the jury in general at this
                                            47
 

 

 

 


           1       stage that would be --

           2   JUDGE CUTLER:  Yes, I am quite willing to receive any

           3       thoughts anyone might want to put forward.

           4   MR MANSFIELD:  Yes I will be brief because I appreciate you

           5       are going to resolve this matter later.

           6           In terms of jury anonymity, I think there's a real

           7       concern that a jury may feel that there's a different

           8       flavour in a case in which they are given letters, even

           9       if they are called by name.  In other words, you would

          10       at some stage plainly have to indicate to them why they

          11       are given letters because they might wonder -- they

          12       might ask a question as to why.

          13           Now, one understands that possibly in exceptional

          14       cases, where there could be interference with a jury or

          15       there's a suggestion that a jury may feel threatened by

          16       the nature of the case.  We don't say that applies to

          17       this case.  Therefore, we would develop an argument

          18       along the lines that the jury should be certainly

          19       summoned from the normal constituency that would have

          20       applied had this stayed in Barnet, and that they are

          21       not -- as it were, blanket anonymity for all of them, or

          22       any of them, so I am not suggesting people are singled

          23       out.  And that we do have questions which we would want

          24       asked of a jury --

          25   JUDGE CUTLER:  Of course.
                                            48
 

 

 

 


           1   MR MANSFIELD:  -- but -- and I don't think anybody is

           2       suggesting that no one who lives in Tottenham, for

           3       example, should be on the jury -- but we would want

           4       questions asked, just as I'm sure other parties would,

           5       to ensure if there is somebody who lives in Tottenham,

           6       we wouldn't need to know the address, of course, as to

           7       whether in fact that connection provides a connection

           8       either with the Duggan family or with the police or with

           9       the riots that followed or whatever.  You can see the

          10       questions.

          11   JUDGE CUTLER:  Yes, I can.

          12   MR MANSFIELD:  But rather than having a constituency ruled

          13       out altogether.  And, as I say, no one is suggesting

          14       that.

          15           So our preliminary submissions would be the normal

          16       approach to a jury with questions that would have to be

          17       asked.

          18           May I just pose an extra dimension here which hasn't

          19       been touched upon, so people can think.  We are very

          20       concerned about the fact that the Foster trial, despite

          21       representations from ourselves, was held in public.  The

          22       Foster trial -- actually certainly if one looks on

          23       line -- many people thought was actually the trial of

          24       Mark Duggan.  So a huge amount of prejudice was

          25       generated by a trial that wasn't actually dealing with
                                            49
 

 

 

 


           1       the issues that are going to arise in the inquest.  But

           2       the prosecution in that case thought it appropriate to

           3       call some of the officers who are going to be central to

           4       this inquest, and the reporting of that is essentially

           5       one way, because obviously we weren't represented, we

           6       weren't able to cross-examine the officers and, although

           7       there was some controversy about the pathology,

           8       basically the key issue about Mark Duggan being shot

           9       because he was carrying a firearm, that has all been in

          10       the public domain already.  Now, that causes a wider

          11       issue of prejudice.

          12           So we would be wanting to say questions might need

          13       to be asked about the knowledge of any potential juror

          14       of that trial on two occasions, and the publicity that

          15       accompanied it.  Even if there isn't agreement over

          16       a question, for example, we would ask that you consider

          17       a direction to a jury in any event indicating that they

          18       may have heard of a previous trial.  In fact, it was not

          19       the trial of Mark Duggan, the issues were different and

          20       the issues of this inquest have not been litigated

          21       anywhere else.

          22   JUDGE CUTLER:  No.  I'm with you all the way on that.  In

          23       advance of the next hearing what I would like from you,

          24       if at all possible, would be some written skeletons as

          25       to what you feel should be the position and we can look
                                            50
 

 

 

 


           1       at it in some length next time.

           2   MR MANSFIELD:  Yes, thank you very much.

           3   JUDGE CUTLER:  Yes, Mr Thomas.

           4   MR THOMAS:  In terms of suggested questions, I think we

           5       don't have a problem at all in, before the next hearing,

           6       having suggested questions --

           7   JUDGE CUTLER:  That would be useful, thank you.

           8   MR THOMAS:  -- for the jury.

           9           Sir, can I just raise two issues that arise out of

          10       the issues that have just been raised?  The first is on

          11       the question of jury anonymity.  There's another

          12       argument, an argument that hasn't been raised yet, which

          13       I would ask you to think about and it is this.  This is

          14       a case where we know that there is an application for

          15       anonymity of various police officers.  Those who make

          16       that application will develop that application later on

          17       and we will deal with that.

          18           Working on the assumption that you grant anonymity

          19       for those officers in various phases, albeit cipher or

          20       screening or whatever, the one thing that is going to be

          21       very clear to the jury is that these officers, for

          22       whatever reason, are being treated differently than some

          23       of the other witnesses that come before the inquest.

          24           Now, juries aren't stupid, they will know, they will

          25       be able to put two and two together to understand that
                                            51
 

 

 

 


           1       the reasons why these officers have been granted

           2       anonymity must be to do with protecting their identity.

           3       It doesn't take much to work out that, well, their

           4       identity has probably been protected because there is

           5       some level of, or thought to be some risk attached to

           6       their identity being known.

           7           Therefore, if a jury had their identities

           8       anonymised, they may well believe that their identities

           9       are being anoymised because potentially there is some

          10       level of risk to them.

          11           That is a dangerous road to go down and it's a road

          12       that will set a mind frame with a potential juror which

          13       could lead to prejudice and not --

          14   JUDGE CUTLER:  No, I understand your concern.

          15   MR THOMAS:  You follow the point.

          16   JUDGE CUTLER:  There's the other side of that, of course,

          17       obviously, they may be thinking, "Why are these

          18       officers, they can come saying they are X, Y and Z, why

          19       can't we?"

          20           There we are, we will have to look at that at some

          21       length.  I do understand that there are a number of

          22       aspects to this that need proper examination.

          23   MR THOMAS:  Can I raise the second point.

          24   JUDGE CUTLER:  Yes.

          25   MR THOMAS:  Which touches upon the whole thing about
                                            52
 

 

 

 


           1       anonymity.  I appreciate we haven't touched on this yet.

           2           Sir, you made a preliminary ruling which was

           3       circulated on anonymity.

           4   JUDGE CUTLER:  Yes.

           5   MR THOMAS:  May I just ask, that preliminary decision, was

           6       it part of the ruling -- because I wasn't too sure of

           7       this -- that the press cannot see the various witnesses?

           8   JUDGE CUTLER:  I haven't come to that at all.

           9   MR THOMAS:  Or public.

          10   JUDGE CUTLER:  All that has happened is that it's a draft

          11       anonymity ruling, without looking at -- if one might

          12       call the special measures that really accompany them.

          13   MR THOMAS:  That's very helpful because what will need to

          14       happen on the next occasion then is that the press are

          15       going to have to be given notice so that they, as

          16       an independent body, as it were, can put forward their

          17       submissions.  Because they may well argue that there are

          18       article 10 issues that arise.  I know this because I've

          19       just been arguing this in another case very similar, the

          20       David Emmanuel case, and there was issues as to whether

          21       or not the press had to right see the witnesses and

          22       indeed the public.

          23           I raise it now because they will need to be given

          24       notice.

          25   JUDGE CUTLER:  Thank you.  Thank you, Mr Thomas.
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           1           Right, yes, Mr Underwood.  We're brought on to the

           2       witness anonymity issue.

           3   MR UNDERWOOD:  Item 6 then is the anonymity applications.

           4       The position is that you have received two sets of

           5       applications which you've had a chance to consider.

           6       A third set was completed last Friday which you haven't

           7       yet had a chance to consider, I understand.

           8           There are, of course, underlying materials to do

           9       with those applications and all you've done at the

          10       moment is send out the provisional indication.  In order

          11       for that to go anywhere the underlying materials now

          12       have to be served on the family and any other interested

          13       person on this.  One set of the applications are already

          14       in a state where they can be disclosed in that way,

          15       another set will be shortly.  So the next step, within

          16       the next 24 hours or so, is that the underlying

          17       materials should be served at least on the families'

          18       legal representatives.  Again, behind the scenes in the

          19       usual constructive way between the legal teams here, to

          20       work out a way in which representations should be

          21       advanced to you.

          22           I suggest that that will be done in the first

          23       instance in writing with provision to be made for an

          24       oral hearing, whenever is suitable.

          25           As has already emerged, the provisional indication
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           1       you have given so far about screening hasn't descended

           2       into detail about who should be on what side of the

           3       screen and who should see who is behind the screen.

           4       Those are all matters which would need to be aired in

           5       the addresses to you.

           6           So all I am suggesting about that is that you can

           7       comfortably leave it to the legal teams to liaise in

           8       order to do this as efficiently as possible.

           9           Unless anybody has any specific comments to make on

          10       that.

          11   JUDGE CUTLER:  Mr Stern, is there anything you wish to say

          12       about this?

          13   MR STERN:  No, I am quite content to deal with it in that

          14       way.  I am just getting slightly concerned about the

          15       number of issues that we are putting on the back burner

          16       that we have to actually deal with at some stage.

          17   JUDGE CUTLER:  Hopefully this is a particular issue which is

          18       progressing comparatively speedily to a conclusion.  I

          19       think it doesn't actually need to wait until this July

          20       date for a conclusion, it can be brought forward much

          21       earlier and if a hearing is needed then one can be

          22       held April, May or whenever.

          23   MR STERN:  Thank you, sir.

          24   MR UNDERWOOD:  I fully accept Mr Stern's point that there

          25       are two ways of approaching things like this.  One is
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           1       you can set a series of hearing dates by which things

           2       have to be done.  The other is that things can be done

           3       whenever they can practically be done quickest and

           4       ideally before any hearing date that would be fixed.

           5           Given the very constructive relationship between all

           6       the teams here, I anticipate the second of those

           7       approaches is the better one.

           8   JUDGE CUTLER:  Yes, good.

           9   MR UNDERWOOD:  So that then only leaves the question of

          10       issue 7, the live feed audio visual out of court.

          11           Can I say this?  Because this inquest is covered by

          12       all the provisions which apply to courts in respect of

          13       televising and recording, we are stuck with the rules by

          14       which we cannot have an audio or a visual feed out of

          15       the court premises, by which I mean the court building.

          16       Naturally I think is well known, if one were able to use

          17       this court there could be transmission into court 76.

          18       What cannot happen wherever we go is that there is

          19       an audio or a visual feed outside of whatever building

          20       we use, regrettably.

          21   JUDGE CUTLER:  I think for the moment that's limited to the

          22       Court of Appeal, Criminal Division, in a few weeks'

          23       time.

          24   MR UNDERWOOD:  And the Supreme Court, by statute.

          25   JUDGE CUTLER:  Yes.
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           1   MR UNDERWOOD:  I don't know whether anybody wishes to make

           2       any applications or has any observations on that.

           3   JUDGE CUTLER:  No.  Probably there isn't anything to be said

           4       about that.

           5           I know it was mentioned last time and taken up in

           6       perhaps a way which it wasn't particularly intended to

           7       be stated on the last occasion.

           8   MR UNDERWOOD:  Yes.

           9   JUDGE CUTLER:  There we are.

          10   MR UNDERWOOD:  So that deals with all the matters on the

          11       agenda.  I don't know whether anybody else has any

          12       issues they wish to raise at this stage.

          13   JUDGE CUTLER:  Well, let's see if there are any other

          14       matters running along the front.

          15   MR MANSFIELD:  No, thank you.

          16   MR STERN:  No thank you, sir.

          17   JUDGE CUTLER:  Well, that's very good.

          18           Thank you all very much indeed.  What we'll do then,

          19       as I say, we'll put in our diaries the dates of 13 May

          20       for our draft report, 15 July for a potential hearing,

          21       but if earlier hearings are needed between now and then,

          22       obviously the teams can get together and a suitable date

          23       can be arranged for those that are concerned with them.

          24           Mr Thomas, is there anything else you wish to raise?

          25   MR THOMAS:  Just one issue, forgive me.
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           1           The report that is going to come to you.

           2   JUDGE CUTLER:  Yes.

           3   MR THOMAS:  I think there was discussion about one report.

           4       I think it would be wise for you to see all the reports

           5       the IPCC are currently doing because there's more than

           6       one report.

           7   JUDGE CUTLER:  Well, there's talk of a second report, of

           8       course; but, yes, they haven't really gone into the

           9       details of that.

          10   MR THOMAS:  That's the first thing.

          11           Secondly, in terms of the report that does come to

          12       you, the one report that we were discussing that comes

          13       to you, both in the redacted form, it would be wise if

          14       you would report to the IPCC that you expect to see both

          15       reports because --

          16   JUDGE CUTLER:  I would like to see both reports in full form

          17       as soon as practicable.  I think Mr Tam understands

          18       that.  All I was saying that if there are certain

          19       matters within the report that decisions haven't been

          20       made about yet and it's inappropriate for anyone else to

          21       see, then please just take those out of the reports and

          22       let us have what is available as soon as practicable.

          23   MR TAM:  Sir, yes, we'll apply that approach to both

          24       reports.

          25   JUDGE CUTLER:  Thank you all very much then, I'll rise.
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