Select Committee on Northern Ireland Affairs Minutes of Evidence


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.


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2005
Prepared 23 February 2005