APPENDIX 5
Memorandum submitted by the Committee
on the Administration of Justice (CAJ)
The Committee on the Administration of Justice
(CAJ) believes that the Office of the Police Ombudsman for Northern
Ireland is a vast improvement over the Independent Commission
for Police Complaints (ICPC), the previous police complaints body.
The new institution is empowered to conduct
independent investigations and has much greater powers, resources
and public support than its predecessor. The Office is also a
model with regard to outreach and engagement with external bodies,
especially when compared to other statutory bodies. According
to public opinion surveys commissioned by the Police Ombudsman,
85% of the Northern Ireland public have heard of the Office (hereafter
PONI), and very importantly 85% of those who have heard of the
Office believe it is independent of the police.
It is clear that the Police Ombudsman is determined
to improve policing through impartial investigation of complaints
and policing policies and practice, as well as referring recommendations
for better practice to the Police Service and to the Policing
Board. The Police Ombudsman guards her independence well and strives
to protect the rights of both officers and complainants. In so
doing, the Office offers greater credibility and legitimacy to
the new policing arrangements overall, and facilitates increased
public confidence in the Police Service of Northern Ireland (PSNI).
CAJ has no hesitation in asserting that the
establishment and operation to date of PONI has contributed positively
to the new beginning to policing.
Of course, we also believe that, like all institutions
(especially new ones), PONI could make further improvements to
its operations, and the following submission highlights a number
of issues which have come to our attention in this regard. CAJ
is currently finalising a very detailed commentary on the work
of the NI Police Ombudsman's Office. As part of the process, CAJ
has met or corresponded with over 40 individuals and organisations,
including solicitors, community groups, human rights organisations,
and statutory agencies regarding their experience of the work
of the Police Ombudsman. Unfortunately, the full document will
not be available in time for the inquiry by the Northern Ireland
Affairs Committee, but we have highlighted some of the major issues
and concerns that we think that the Committee might find it useful
to address in the course of its own inquiry.
ISSUES THE
COMMITTEE MAY
WANT TO
PURSUE
1. Independence: is a crucial principle
for the Ombudsman's office—both in reality, and in terms
of public perception. There is however a high proportion of investigative
staff seconded from police forces elsewhere (approx 25%), as well
as quite a number of former police officers, including ex-RUC
staff. What is the policy of the Office in regard to recruitment
and what steps are being taken to increase the proportion of non-police
officers on staff?
2. Investigations: Some concerns
have been raised with CAJ about the attitude of investigators
towards complainants, delays in the investigation process and
the quality of investigations. PONI has introduced a quality assurance
programme but it is not clear that it monitors for such issues
and, if not, should it not be changed to do so?
3. The oversight of operational issues
is still problematic: CAJ's commentary will be looking in
detail at the Ombudsman's work in relation to the policing of
public order situations, decision-making around raids, arrests
and deployment, and the information the police give to the press
and the public with regard to operations and suspects. The Patten
report noted that operational responsibility "does not mean
that the Chief Constable's conduct of an operational matter should
be exempted from inquiry or review after the event by anyone.
That should never be the case" (para 6.21). NIAC should discuss
the extent to which PONI's legislative mandate currently allows
for the investigation of complaints about operational matters,
and the extent to which legislative changes are called for.
4. Mediation: This is an important
alternative to formal investigations but appears not to be being
fully or effectively used as yet. A series of measures are needed
both in legislative and operational terms to facilitate greater
use of this option. NIAC may want to ask PONI how this aspect
of the Ombudsman's work could be improved.
5. Substantiation rates: This is
the usual measure that is used by the general public to assess
the effectiveness of an independent complaints mechanism. While
not the sole or necessarily most important measure, it is clearly
of concern that current substantiation rates seem very low, and
the reasons for this need careful examination. NIAC may want to
recommend that a review be conducted to determine what happens
particularly in cases where it is the complainant's word against
the word of a police officer and that in the meantime an "unable
to determine" case outcome category be created. A "police
misconduct" case outcome category could also be created for
use in cases where it is clear that misconduct occurred but not
clear which officer was responsible. CAJ has previously recommended
that an active policy on whistle-blowing could contribute to ending
the practice of individual officers engaged in wrongdoing being
misguidedly protected by their colleagues.
6. Disciplinary Hearings: To ensure
greater transparency, it would be excellent if PONI were required
to report on the outcome of all disciplinary hearings resulting
from their investigations.
7. Role of the Director of Public Prosecutions
(DPP): Many cases appear to fail the test for prosecution
set by the DPP but this element of the investigation is totally
lacking in transparency. An independent review should be carried
out to examine the approach being taken by the DPP in response
to cases originating from PONI.
8. Retrospective cases: PONI should
consult on and publish its detailed criteria for determining to
take action on certain retrospective cases, and on the definitions
it is using when commenting on allegations of collusion. Adequate
funding must be provided to PONI to allow it where appropriate
to exercise its statutory powers to investigate, without any further
delay, retrospective cases.
9. Plastic Bullets: CAJ is totally
opposed to the use of plastic bullets and is campaigning actively
for their withdrawal. In the meantime, we urge that the Police
Act be amended to require the Chief Constable to refer all plastic
bullet firings to the Police Ombudsman for investigation (at present
the Chief Constable has introduced a voluntary code to refer such
firings). The CAJ commentary will discuss PONI reports to date
on plastic bullet firing, and the army/police division of work.
It is noteworthy that with increased scrutiny of the police firing
of plastic bullets, army usage has increased markedly.
10. New weaponry: CAJ expressed
grave reservations at PONI's apparently unsolicited endorsement
of the Policing Board's decision to purchase CS spray. This is
discussed in CAJ's commentary but one important lesson for the
future is that PONI re-examine whether it has the legislative
authority to comment on as-yet unused weapons (which, by definition,
are not the subject of complaints). Even if it were determined
that PONI can comment on proposed new weaponry, such comment must
be made only when all relevant research, especially independent
research, has been carefully evaluated.
11. Transparency: The quality of
the transparency of the Office of the Police Ombudsman was considered
mixed by interviewees for CAJ's commentary. Many people spoke
very highly about the amount of information the public can access
from PONI—press conferences, published statistics, contact
with families and community groups, outreach to local District
Policing Partnerships, and extensive use of the Office's website
and publications to issue quarterly complaint data and other such
material. Monthly statistics are also shared with the PSNI and
the Policing Board. Compared to the other policing institutions,
the Police Ombudsman is extremely open to engagement and information
sharing. At the same time there was concern about the problem
of disclosure (see on) and major events like the international
conference organised by PONI in November 2003 which allowed little
time for open debate and critical self-examination.
12. Disclosure: By far the biggest
complaint of solicitors who assist complainants and others is
the extent to which PONI does or does not disclose information.
CAJ is currently pursuing a judicial review against the Chief
Constable and Police Ombudsman in this regard, and some reference
to this problem was raised in the Hayes review but the issue has
clearly not yet been resolved satisfactorily. An unfortunate consequence
of the lack of clarity in this area means that complaints are
not being resolved—either because solicitors will advise
their clients not to provide a statement until their hearing(s)
are concluded and/or because the Police Ombudsman closes the case
due to lack of co-operation. Due to the time limitations involved,
this can lead to complaints not being investigated, the officer
not being charged or disciplined, and the concerns raised in the
complaint not being passed to the PSNI or made known to the public.
The Committee may want to pursue this issue in some detail with
PONI in the course of their testimony.
The full CAJ commentary will discuss the issues
above in some detail, will look at the research reports issued
by the Ombudsman, and will examine more closely the links between
the Police Ombudsman's Office and other policing institutions.
In our earlier commentary on the Policing Board
(November 2003), we expressed concern about the lack of frequent
and routine contacts between the Board and the Ombudsman, and
CAJ understands that the situation has not dramatically changed
in the interim, despite an interest on the part of the Ombudsman
for more systematic exchanges. This may be an issue that the Committee
will want to explore with the Policing Board witnesses to the
inquiry.
The NI Affairs Committee may also want to ascertain
from police witnesses the extent of routine exchanges between
the PSNI and the Ombudsman's Office. If institutional learning
and institutional change is to occur, it is vital that the findings
of the Ombudsman be forwarded to, and acted upon, by police trainers
and middle-level as well as senior police managers. CAJ believes
that routine information exchanges of this nature are not necessarily
yet in place within the PSNI, and the Committee may want to assure
themselves that the creation of an independent complaints system
is complemented by internal police management systems that can
pick up on trends and take action accordingly.
CAJ will complete and publish its full commentary
in the coming weeks. We look forward with great interest to study
the findings of the Committee. We hope that the thrust of the
Committee's report will be to focus on the important contribution
the institution of the Ombudsman is making to increased public
confidence in policing, while emphasising that there is still
much improvement that is possible. The challenge for the Committee
is to learn how changes to the work of the Ombudsman's Office
can further contribute to the "new beginning" for policing.
The Committee may want in particular to seek
comments from witnesses on the extent to which the recommendations
made by Patten are now in fact in place—
"The Police Ombudsman should be, and
be seen to be, an important institution in the governance of Northern
Ireland, and should be staffed and resourced accordingly. The
Ombudsman should take initiatives, not merely react to specific
complaints received. He/she should exercise the power to initiate
inquiries or investigations even if no specific complaint has
been received. The Ombudsman should be responsible for compiling
data on trends and patterns in complaints against the police,
or accumulations of complaints against individual officers, and
should work with the police to address issues emerging from this
data. He/she should have a dynamic co-operative relationship with
both the police and the Policing Board, as well as other bodies
involved in community safety issues. He/she should exercise the
right to investigate and comment on police policies and practices,
where these are perceived to give rise to difficulties, even if
the conduct of individual officers may not itself be culpable,
and should draw any such observations to the attention of the
Chief Constable and the Policing Board. The Ombudsman should have
access to all past reports on the RUC (para 6.41, recommendation
38)."
July 2004
| 
