Examination of Witnesses (Questions 40-59)
21 JULY 2004
MRS NUALA
O'LOAN, MR
SAMUEL POLLOCK,
MR DAVID
WOOD AND
MRS OLWEN
LAIRD
Q40 Mr Clarke: Thank you,
Chairman. That was a very careful answer, if I may say so, in
terms of Mr Bailey's last question, but would it be fair to say
that 100% of Police Forces, if asked, would say that there is
less misconduct in their Force than in anybody else's?
Mrs O'Loan: Maybe.
Q41 Mr Clarke: I want
to return to the use of batons. I am highly supportive of the
work of the Ombudsman, but it has almost been claimed that the
Ombudsman's work has resulted in less use of batons, whereas the
reality, I suppose, is the reason that there is less use of batons
is that there has been an introduction of CS spray, and that officers
would rather spray somebody from 10 feet than hit them with a
baton from three; is that fair?
Mrs O'Loan: It
is a simple answer, Chairman. The CS spray came in on 1 July of
this year, so we do not have figures that we can compare with
the CS spray and the batons.
Mr Pollock: It
is about the complaint that arises from the use of batons and
not the total use of batons that might exist.
Q42 Mr Clarke: I accept
that but I think that most other UK Forces that have introduced
CS spray and/or PAVA, there have been huge drops in the use of
batons which would obviously lead to a drop in the number of complaints
because it is a better option for police officers' safety. So
would it be fair to say that the real reason that there has been
a drop in complaints in respect of the use of batons is not necessarily
because of any investigative work, it is because the use of CS
spray has meant that there is less use of batons and therefore
less complaints?
Mrs O'Loan: Chairman,
no, that is not correct, with respect. It is now 21 July and they
started using CS spray three weeks ago. So until three weeks ago
they had no opportunity to use CS spray, the only thing they had
was the batons, yet the baton use has reduced. As I said in answer
to one of your colleagues earlier, I felt it was attributable
to a number of things: one was better training, one was the fact
that we had fewer interface situations and, finally, a lot of
the baton complaints come on Friday night/ Saturday morning, et
cetera, and I think that police officers are being trained in
what we might call "conflict resolution"—find
another way out of this—and I think that is extraordinarily
beneficial to the police and to us.
Q43 Mr Clarke: That would
be the same for live rounds because you note there have been reductions
in the use of live rounds?
Mrs O'Loan: Yes.
Q44 Chairman: Are they
required to report the use of CS spray to you, as a matter of
routine?
Mrs O'Loan: No.
Q45 Chairman: Do you know
if it has been used in the last three weeks?
Mrs O'Loan: It
has been used in the northwest in the past week and we have had
four complaints—three about the use of it and one associated
with the use of it—this week.
Q46 Mr Clarke: It is probably
a fairer question to ask the PSNI, but do officers have to complete
the use of force forms after every withdrawal of baton or CS spray?
Mrs O'Loan: They
do.
Mr Wood: They have
a very comprehensive policy and procedure of what takes place
immediately after. It has to be properly reported, yes, and we
were properly consulted on the use and we think it is a good and
substantial policy to compare with any other policing service.
Mrs O'Loan: I think
you can pursue it with the Deputy Constable, but the actual canisters
are weighed and they can tell whether they have been used or not.
Chairman: Those will be
questions for later. Mr Roy Beggs.
Q47 Mr Beggs: I would
like to put some questions with regard to the future role of the
Police Ombudsman in respect of investigations and police policies.
Did you proactively seek additional powers to investigate this
practice and policy contained in the 2000 and 2003 Acts, and why
were these additional powers necessary?
Mrs O'Loan: May
I say, Chairman, that when the Office was established in the 2000
Act we were given the power to research police policy and practice.
At no stage did I seek a power to investigate police policy and
practice. My belief is that it came out of talks in which political
parties were engaged, and I do not think I need to say any more
about that, because I was not involved in that process.
Q48 Mr Beggs: Can you
assure the Committee that with those powers that are available
to you that there is no danger of your Office straying into PSNI
operational matters?
Mrs O'Loan: No,
we are not going to stray into operational matters but we are
certainly going to stray into areas like Article 1 of the Police
Code of Conduct, which refers to the need to police impartially,
or Article 10 which refers to the need for management and supervision
to take place in a proper manner. Those are conduct issues, and
in each situation with which we are faced we have to examine the
conduct of the officers. If we have a sufficient body of concern
from the general public about a particular issue then I think
it would be appropriate for us to initiate a policy and practice
investigation. We have actually initiated one policy and practice
investigation since we got the power, Chairman. It started off
as an investigation into the identification of police officers
because there are ongoing problems with people being able to identify
the officer with whom they are in conflict, but then we realised
that there were further problems and we have now set about a major
consultation with community groups, political parties, et cetera,
about identification of police generally, vehicles and everything
else, and whether this meets public needs, taking into account
policing needs. We certainly do not seek to interfere with the
Chief Constable's operational decision-making.
Q49 Mr Beggs: Is the distinction
between practice and policy on the one hand and operations on
the other unclear?
Mrs O'Loan: I think
there are situations in which policy and practice influence operations,
clearly. What we have to look at are the conduct issues. That
is one set of questions. Are they conducting issues to conduct
an investigation? Are they policy and practice issues? Policy
is what the PSNI tells the force it should do and how it should
do it; in practice it is how they actually do things and, if there
are no instructions, then what do they do. Those are the issues
that we look at under the policy and practice, Chairman, if that
helps.
Q50 Mr Beggs: Are you
seeking any further legislative change to extend your powers in
this area?
Mrs O'Loan: I have
not sought any legislative change to extend my powers in that
area. I have sought legislative change to enable me to mediate
without investigating first. The legislation that I have under
the 2000 Act says that I can mediate where a person is in conflict
with the policy but I can only do so after investigation. The
process of investigating police complaints is lengthy; it is adversarial.
By the time you have investigated to the point at which you think
that really this is for mediation, the parties are distanced far
more than they would be if you had come to the mediation first.
There are many complaints where I can see mediation as the answer
to the problem, but the legislation says I cannot do that; I must
investigate first. I am seeking that one change to the legislation,
which is the removal of the requirement to investigate before
mediation.
Q51 Mr Beggs: To date,
we understand that only one investigation into policies and procedures
has been conducted with reference to officers not displaying numerals
on uniform in public order incidents. What other investigations
into policies and procedures are planned
Mrs O'Loan: No,
what I said to you was that we have widened the scope of the identification,
police and practice and we are conducting that one. We have adopted
a particularly theoretical framework within which to do that.
We want to be able to stand over the methodology. We have not
planned any further ones beyond that at the present time. There
are a number of policy and practice issues which come to me, such
as arrest processes; people will bring to me repeatedly complaints
about the number of Land Rovers which arrive at their house when
the police want to arrest and the times at which they arrive.
That is an issue which I think is cause for concern, but I have
not made a determination with my senior management team that will
do that.
Q52 Mr Beggs: What level
of additional resources would be required for your office to pursue
further investigations of the police procedures and policies?
Mrs O'Loan: We
have not sought any further resources to do this, Chairman. We
have attempted to do what we can with the resources available
to us. The structure of our process is that if we identify a need
for further resources, we should make a business case to the NIO,
and that is what we would do. At the present time, we have not
done that.
Q53 Reverend Smyth: You
have made reference to the fact that you have been asking for
some changes but there have been some legislative changes since
the office has been set up. What has the overall effect been upon
you and how has it affected you in stabilising the work of the
Ombudsman with such changes?
Mrs O'Loan: We
have had a lot of changes in three and a half years. Briefly,
we started off having to investigate police conduct against three
sets of different regulations. We have now moved in to post-March
2003 conduct. We have one code of ethics. When we get to conduct,
that is it. We have two standards of proof in discipline cases
we are currently investigating. One is beyond a reasonable doubt
the other is on a balance of probabilities. All those create process
needs for us, and so that is one thing. We have a retrospective
duty to investigate; that came in 2001. Initially, complaints
could be made within two years of the incident, then it became
one year, and now it is one year unless it is grave or exceptional
without limit. That has imposed a burden on the office, and it
is a resources burden, but I think those complaints come from
police families, prison officer families, UDR families, all sorts
of families right across the community. There clearly is a need
for something to be done there. We have the new power to investigate
policy and practice, which Mr Beggs referred to. What we have
done there is restructure the office to enable the function to
be exercised and find a methodology and things like that to start
the first real investigation. We were scheduled under the Regulation
of Investigatory Powers Act, and that required us to set up particular
procedures for investigatory powers, which we use; those are special
investigatory powers. We were inspected by the Surveillance Commissioner
in March and he reported back to me that he had no requirements
of me, but he would have expected nothing less of me. We have
new duties coming, as I said, to investigate complaints against
non-sworn officers. The DPP now will have a duty to refer complaints
to us. I guess all those are building our workload. I think our
hope is that because the level of complaints is diminishing, we
can redirect resources and try and manage the thing. We recognise
the limitations on the public purse. That is what I am trying
to say to you.
Q54 Reverend Smyth: As
I understand it, your Secretary of State is about to have contact
with you and you are in contact with him about long-term policing
objectives, and likewise the Chief Constable in the formulation
of codes of ethics. How often do you have such contact or have
you had on those issues?
Mrs O'Loan: Is
that on objective or code of ethics? The Code of Ethics was passed
in 2003 and we were consulted I think for about two and half years
before that after the legislation was passed until it was adopted.
I made lengthy representations on that one. There is a new booklet
which the police have produced for staff on the Code of Ethics
on which I was not consulted, but that is there. The second thing
you asked was about the Secretary of State. I meet the Secretary
of State and I met him most recently three weeks ago. I meet the
Northern Ireland Office Permanent Under Secretary and I meet the
Senior Director of Policing and Security, the number two to the
Permanent Under-Secretary, and also the Director of Policing.
We have various meetings across various levels.
Q55 Chairman: You have
slightly anticipated some of the questions we were going to ask
you in your answer to Mr Beggs about mediation. Let me try and
get us back on track there and then other colleagues must feel
free to come in. You believe that it is wrong that mediation should
come after you have got underway a formal investigation and found
that there is nothing terribly serious and you could perhaps solve
it informally. You actually need a basic change in the law to
achieve that, do you?
Mrs O'Loan: Yes,
we do because the Police Act says that I can mediate after investigation.
Those words are in at law, and I have to get those words removed
to enable us to mediate—to decide at some point perhaps
even in the investigation that this is more suitable to mediation.
Q56 Chairman: This may
well be something we would want to recommend as a result of your
experience. It is simply a question of taking some words out to
allow you to start the process by saying, "Is there any way
we can do this informally?"
Mrs O'Loan: Chairman,
we have had lengthy talks with the Police Service and with the
Police unions, the staff associations. They have all agreed. Most
recently we had a final meeting to fine-tune our understanding
and the Police Service understanding of how this would work, and
we are in the process of communicating our joint position to enable
the Northern Ireland Office to bring to Parliament the necessary
change.
Q57 Chairman: Have you
made a formal representation to the Northern Ireland Office yet?
Mrs O'Loan: We
did make a formal representation, and it has been going on for
about two years. They have consulted the staff unions and the
police and come back.
Q58 Chairman: I think
that is a very satisfactory moment for us to say that we hope
we can help you o this subject.
Mrs O'Loan: Thank
you, Chairman.
Q59 Mr Tynan: Could you
explain how the various oversight mechanisms you highlight in
your submission provide an effective and focused review mechanism
for those individuals who wish to complain about the activity
of your office?
Mrs O'Loan: Yes.
Can we take different groups of individuals perhaps, and children
first of all because I was asked about children and they are very
important? Children in Northern Ireland can complain to a Commissioner
for Children and Young People. The Commissioner for Children and
Young People has the powers of a High Court judge, and he has
the power where I have investigated to come and investigate my
investigation. He can compel witnesses to give testimony. I cannot,
for example, compel police officers to give me evidence, but he
has that power to compel, which I do not have. That is the children.
Anybody can make a complaint against the office, and we are a
very small office. We have had 20 complaints from police officers
in respect of which 12 were about one incident, and that one incident
was the occasion on which police officers walked up and down the
steps of Stormont, which is our parliament building. We received
two allegations of minor assault but, because we did not know
which police officers might have been responsible for these minor
assaults, we had to serve notices on every single police officer
that they might be under investigation, to give them notice so
that they could prepare any defence that might be necessary. We
had complaints that we had served these notices. They did not
think we should have served these notices because they had done
what they were told to do, go up and down the steps. That was
one case. We had 20 complaints from police officers and we have
had eight complaints this year from members of the public. There
have been 28 complaints against the office. The current mechanism
is that these people complain to us. We then will appoint an independent
member of staff who has not been previously involved to investigate.
Mr Pollock deals with all public complaints. Mr Wood deals with
allegations by police officers against my staff. If the people
are not satisfied, they can go to the Secretary of State, and
they do. A number of those 20 and those eight have come through
the Secretary of State. The Secretary of State has the power to
operate on a call-in basis an independent investigation of my
office. He has not used that power but it does exist. I suppose
for me the biggest form of accountability is something like coming
here today, but we also have a Criminal Justice Inspector and
he has the right to inspect the processes of my office. He has
a complete right of access to information, et cetera, and to premises
and all that sort of thing. I think he is planning to inspect
us next September. The Surveillance Commission, as I have said,
inspects us. The Comptroller and Auditor General is enormously
important because we are the repository of £7 million worth
of public funds. We are audited in respect of the way in which
we spend that money, and I am heartily glad of that. We are required
to report to the Secretary of State. We are required to account
to the Policing Board, as Mr McGrady alluded to, in terms of the
recommendations which we make and the reporting structures there.
The core of this to me is that we have had these 28 complaints.
Police officers are not shy when it comes to making complaints
and they have had judicial review on a number of occasions. We
have not lost the judicial review. We have been judicially reviewed
on a number of occasions. The fact that the independent mechanism
exists in the Secretary of State's office to call in an independent
outsider I think is good. I suppose that I actually think that
this is a good process, and this is probably the wrong wording
too, because it really compels us to scrutinise what we are doing.
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