Memorandum submitted by the Northern Ireland
Office
BACKGROUND
1. In 1995 Dr Maurice Hayes, who had held
senior positions in local government and in the Civil Service
in Northern Ireland, as well as being the Assembly Ombudsman for
a time, was appointed by the then Secretary of State to conduct
a review of the Police Complaints system in Northern Ireland;
his terms of reference are at Annex A.
2. Dr Hayes produced his report in January
1997 and the main principles he identified as underpinning a police
complaints system for Northern Ireland are detailed at Annex B.
He reported that "the overwhelming message I got from all
sides and from all political parties was the need for the investigation
to be independent and seen to be independent". He went on
to comment that the existing arrangements were seen as the "police
investigating police" and he believed that:
"independence should be demonstrated
by the person or body concerned having control of the process,
the power to decide what is a complaint, the power to intervene
in the public interest, the power to decide how and by whom the
complaint should be investigated and the power to recommend action
to the relevant authorities".
His main recommendation was that there should
be a full-time post of Police Ombudsman with the duty to investigate
complaints against the police in Northern Ireland.
3. At the time of Hayes report the complaints
process involved both the Independent Commission for Police Complaints
(ICPC) and the police (at that time the Royal Ulster Constabulary).
After completion of an investigation the question of any related
criminal prosecutions was a matter for the Director of Public
Prosecutions and disciplinary issues were for the Chief Constable.
CREATION FOR
THE OFFICE
OF THE
POLICE OMBUDSMAN
4. The Government considered the recommendations
of the Hayes report and as a result the office of the Police Ombudsman
for Northern Ireland was established under the Police (Northern
Ireland) Act 1998. The legislation requires the Ombudsman to "exercise
her powers in such manner and to such extent as appears to her
to be best calculated to secure:
(a) the efficiency, effectiveness and independence
of the Police Complaints system; and
(b) the confidence of the public and of
members of the police force in that system."
5. Thus the independent nature of the new
police complaints system, an independence that Maurice Hayes had
identified as being vitally important from his consultations,
was established. Alongside this independence was a recognition
of the need to gain the confidence of both the public and members
of the Police Service. The legislation also abolished the ICPC.
6. The Government believed that it was important
that the new office forged its own identity and thus the Ombudsman
(designate), Mrs Nuala O'Loan, was appointed in October 1999,
taking up full-time designate responsibilities in April 2000.
In this way she was able to work closely with the project implementation
team in identifying and equipping premises, recruiting suitable
staff, developing practices, policies and procedures for the new
office, procuring IT systems and consulting with the public and
the police to ensure that the vision of an independent and effective
Ombudsman's office was realised. The office opened for business
in November 2000.
7. In helping to mark out the identity of
a new, independent and professional service for handling complaints,
members of staff and investigators were drawn from various disciplines
and backgrounds, and from not only outside Northern Ireland, but
beyond the UK as well.
"PATTEN"
REPORT
8. The value of the Hayes review, and the
decision to create the new office of the Police Ombudsman, was
reinforced with the report of the Independent Commission on Policing
for Northern Ireland (a New Beginning: Policing in Northern Ireland)
which aligned itself firmly with the main recommendation of Maurice
Hayes saying that "a fully independent Ombudsman operating
as he envisaged in his report should be a most effective mechanism
for holding the police accountable to the law". This report
also recognised the value of the Ombudsman's office in compiling
data on trends and patterns in complaints against the police,
and commented that it should work with the police to address issues
emerging from such data.
9. The Commission added, "we cannot
emphasise too strongly the importance of the office of the Police
Ombudsman in the future policing arrangements proposed in this
report. The Institution is critical to the question of police
accountability to the law, to public trust in the police and to
the protection of human rights".
THE PUBLIC
10. In making clear the Government's support
for a Police Ombudsman to provide an independent and impartial
system to investigate police complaints it was recognised that
the establishment, and settling down, of such an arrangement was
itself a major challenge. However, the work of Mrs O'Loan and
her staff in setting up the new office to provide a service to
those with a complaint against the police has been impressive.
The office got to work quickly and has gone to some lengths to
ensure that the public is aware, not only of its existence, but
also of its independence. Dr Hayes reported that the public should
have confidence that the office is independent of not only the
police, but also Government. It is noteworthy that a recent survey
indicated that 85% of respondents were aware of the Ombudsman's
office and that it was independent.
THE POLICE
11. Inevitably in any relationship between
a complaints investigation agency and the organisation it investigates
(and the representative bodies of its members) there will be a
healthy tension at times. However, it is important that everyone
is aware of their responsibilities and obligations, and that the
relationship remains such that it benefits the policing arrangements
provided to the community in Northern Ireland.
12. There have been occasions of adverse
comment about the work of the Ombudsman's office, but any complaints
investigation agency, such as the Ombudsman's office, is there
to help ensure that police officers maintain the highest levels
of conduct and behaviour. It is also important, and the Ombudsman's
office recognises this, that members of the police service (as
well as the public) have confidence in the complaints system.
13. Whilst the Ombudsman is there to help
maintain the high standards expected of officers, the office's
investigations can, and often do, vindicate the actions of police
officers. There are undoubtedly instances where the Ombudsman
will investigate complaints where it is established that the conduct
of officers was less than should have been expected. However,
the office is also an asset to police officers in that it can
correct misunderstandings, or find that a complaint is unsubstantiated.
Thus, reassuring officers that they are maintaining the standards
expected of them, disposing of unfounded allegations, and being
able to explain to someone feeling aggrieved why the police were
not at fault. All this is much more credible and convincing coming
from an independent body, rather than from an internal police
investigation.
14. Some police officers have concerns about
the role of the Ombudsman, and how that is exercised. Therefore
a very helpful and welcome development is that, following a recent
survey of PSNI officers the Ombudsman's office, the Police Federation
and the Superintendent's Association of Northern Ireland have
now set up a joint Working Committee to address issues raised
in that survey.
THE POLICE
BOARD
15. In addition to working with the police
and the public the Ombudsman also has an important working relationship
with the Northern Ireland Policing Board, the other main part
of the police accountability architecture recommended by Patten
and accepted by the Government. Under Section 3(3)(c)(i) of the
Police (Northern Ireland) Act 2000 the Policing Board is required
to keep itself informed as to the workings of the police complaints
and disciplinary proceedings, as well as trends and patterns in
complaints against police officers. The Ombudsman facilitates
this important role by the provision of statistical information
regarding complaints. In addition incidents where police officers
are involved in discharge of baton rounds, firearms or where a
death may have occurred during (or shortly after) contact with
the police, are advised to the Policing Board. In situations where
a conflict may arise between the Ombudsman and the Chief Constable
the Policing Board would have an important role in considering
the matter and determining the way forward (such as happened in
relation to the Ombudsman's report of December 2001 into the police
investigation of the Omagh bombing of August 1998).
ACCOUNTABILITY
16. As Maurice Hayes was at pains to point
out in his report, and the report of the Independent Commission
on Policing for Northern Ireland reinforced, a key factor in the
expected success of a Police Ombudsman would be its independence
from Government and the police. Independence was a critical factor
highlighted in the consultation exercise; independence which would
enable the Ombudsman to enjoy the confidence of the public and
members of the police. Balancing such independence with accountability
is not always easy in any system, and can lead to suggestions
that independence should be controlled through more accountability
17. The Police Ombudsman for Northern Ireland
is operationally independent and, under the Police (Northern Ireland)
Act 1998, enjoys a fixed-period appointment for a maximum of seven
years. In certain circumstances, as detailed in that legislation,
the Secretary of State may call upon the Ombudsman to retire:
(a) in the interests of efficiency or effectiveness;
or
(b) if satisfied that the Ombudsman has:
(i) been convicted of a criminal offence;
or
(ii) become bankrupt or made a composition
or arrangement with his creditors.
18. In recognising that the Ombudsman's
Office is operationally independent of Government the Ombudsman
is required to provide an Annual Report to Parliament through
the Secretary of State for Northern Ireland. This means that Parliament,
and the public, have a picture of what the Ombudsman's Office
has been doing and how it has been performing its tasks. As at
present the Northern Ireland Affairs Committee, on behalf of Parliament,
can require evidence from the Ombudsman's Office, thus reinforcing
the strength of the parliamentary dimension.
19. The complaints system is such that the
Police Ombudsman provides the investigative role in handling a
complaint and makes recommendations to the Director of Public
Prosecutions/Chief Constable regarding prosecution or disciplinary
action respectively. It is then for the DPP to weigh that evidence
and decide whether to take forward a prosecution of a criminal
case, and for a court to decide on guilt and award any punishment
if appropriate.
20. In relation to disciplinary offences
it is for the Chief Constable to decide if the evidence warrants
disciplinary action, undertake the disciplinary proceedings and
award the punishment (under the legislation the Ombudsman may,
after consultation with the Chief Constable, direct him to bring
disciplinary proceedings). Thus the DPP/courts and the Chief Constable
review the evidence acquired by the Ombudsman in the investigation
of a complaint, consider the recommendations made, and it is they
who decide on court or disciplinary proceedings. Of course, any
officer alleged to have been involved in criminal or disciplinary
misconduct has the opportunity to defend him/herself against such
allegations in the courts, or at the police disciplinary hearing.
Thus the final judgement of evidence and any award of punishment
is a very separate and distinct activity from the Police Ombudsman's
role of investigating a complaint.
21. It would not, therefore, be fair to
assume that because the Ombudsman is operationally independent
that there are no reporting mechanisms and controls. Like many
public bodies in Northern Ireland, aspects of the Office's work
are subject to a range of mechanisms which require standards in
its services, eg: the Northern Ireland Office in the provision
of financial resources; inspection by the Criminal Justice Inspectorate;
inspection by the Surveillance Commissioner; audit of expenditure
by the Controller and Auditor General; systems in accordance with
those required by the Equality Commission and the Information
Commissioner; as well as the interest which the Oversight Commissioner(appointed
to oversee the policing changes) has had in the Office. The Office
is also open to judicial review of its procedures or decisions
through the Courts.
REDRESS FOR
COMPLAINTS AGAINST
THE POLICE
OMBUDSMAN
22. The operational independence of the
Police Ombudsman's Office means that it alone is responsible for
the way it investigates complaints and the decisions it arrives
at in relation to those investigations. Such independence is central
to the work of the Office. In considering the handling of complaints
against the Ombudsman's Office itself Dr Hayes referred to the
investigation of complaints of maladministration of the Police
Ombudsman in the exercise of administrative functions. However,
he made clear that this should not be seen as a court of appeal
against her decisions on complaints or policies. Thus, Ombudsman
decisions on investigations can not be second-guessed, helping
to reinforce the independence of the Office.
23. On the issue of maladministration complaints
Dr Hayes suggested that the Police Ombudsman should be added to
the schedule of bodies coming under the jurisdiction of the Northern
Ireland Assembly Ombudsman. This raises the question of whether
one Ombudsman should be able to investigate maladministration
complaints against another Ombudsman. Ombudsmen are generally
not only the final complaint mechanisms against the bodies they
investigate, but also against themselves in relation to a complaint,
apart from judicial proceedings.
24. In the absence of the devolved administration
of policing in Northern Ireland it has not been possible to explore
this idea of reference to the Assembly Ombudsman. Nevertheless,
the Police Ombudsman has developed a robust internal complaints
system under her "Satisfaction Policy Procedure and Register"
for acknowledging and responding to complaints and criticisms
of staff. The putting in place of a Code of Ethics for staff further
enhances the professionalism of the Office. The agreement entered
into between the Ombudsman and the University of Portsmouth, to
help train and externally accredit the Ombudsman's investigators,
is further evidence of the desire to provide a professional service.
25. Those who may have a complaint against
the conduct of a member of the Ombudsman's staff, or the decisions
arrived at, should raise those matters directly with her Office.
In the absence of a final decision about the use of the Assembly
Ombudsman, an ad hoc arrangement has been put in place, whereby
if a member of the public or a police officer has already raised
their maladministration complaint with the Ombudsman's Office,
and continues to remain dissatisfied with the Ombudsman's response
to that internal complaint, he can write to the NIO who will seek
clarification from the Ombudsman's Office. If it becomes apparent
that there was some prima facie evidence of maladministration
on the part of the Police Ombudsman, then the NIO would consider
a full investigation by an independent person. To date the NIO
has not considered it necessary to invoke this arrangement for
an independent investigation.
RESOURCES
26. The NIO has sought to ensure that, within
the demands on its overall budget, the Ombudsman's Office has
been properly resourced to undertake its proper role. The agreement,
in response to pressures on the office, to provide an additional
£250,000 in 2003-04 which, as it was unused at that time,
has been approved for carry forward to 2004-05 (giving a total
provision of £7.8 million for this financial year), is a
reflection of the importance that the NIO attaches to the work
of the Ombudsman's Office. It is also important to recognise that,
with the independence of the Office, it is for the Ombudsman to
decide how best to make use of those resources, whatever their
level, provided by the NIO. Just as it would not be right for
the NIO to seek to influence the prioritisation of the Ombudsman's
demands, so the Office has to work within the available resources
and balance any conflicting pressures.
CONCLUSION
27. The arrangements for the handling of
complaints against police officers vary from country to country
in order to take account of local circumstances; there is no standard
template. In view of the sensitivities, which have on occasions
arisen in relation to police complaints, the Government accepted
Dr Hayes' findings that independence was essential to the success
of any new arrangements. The Government's support for an independent
police complaints system reflects its commitment to ensuring the
highest standards of policing for the people of Northern Ireland.
28. In having an independent Police Ombudsman,
Northern Ireland is at the forefront of police complaints systems
in the world; reinforced by the fact that other countries are
now looking to Northern Ireland for advice in developing their
own police complaints system. This was manifest by the Police
Ombudsman for Northern Ireland hosting an international conference
in November 2003 on "Policing the Police—The Challenges".
It is also interesting to note that in England and Wales there
have been moves towards greater independence in police complaints
through the creation of the Independent Police Complaints Commission,
and in the Republic of Ireland with the Garda Siochana Ombudsman
Commission.
29. In saying that others are now following
where Northern Ireland has been leading, nothing stands still.
Indeed the Police (Northern Ireland) Act 2003 has extended the
powers of the Police Ombudsman by providing for investigations
into current police practices and policies. The Ombudsman, in
conjunction with other interested parties, keeps this system under
review, looking for ways to improve and enhance not only processes
and procedures but also confidence in the system. The first five-yearly
major review, as called for in the legislation, is due next year,
but ready access to an independent and transparent police complaints
system will remain paramount, since it is a benefit not only to
the public, but also to the overall policing arrangements for
Northern Ireland, the PSNI, and police officers themselves.
30. The Government firmly believes that
the Police Ombudsman's Office is now an integral part of the new
policing arrangements in Northern Ireland, along with the PSNI,
the Policing Board and the District Policing Partnerships.
June 2004
Annex A
DR MAURICE
HAYES REVIEW:
TERMS OF
REFERENCE
1. On 28 November 1995 I was appointed by
the Secretary of State to conduct a review of the police complaints
system in Northern Ireland on the following terms of reference.
2. "Objective of the Review: To review
the operation of the existing mechanisms for dealing with complaints
against the police by members of the public and to recommend whatever
changes would be sensible to:
— secure greater public and police
confidence in the system for handling complaints about the conduct
of individual police officers;
— provide protection for police officers
against malicious or vexatious complaints;
— accommodate complaints about standards
of service and policing policies;
— ensure that the systems are accessible,
well publicised, provide an effective response and are easy to
use;
— the need to protect the operational
independence of the police; and
— the need to ensure affordability
and value for money in public spending."
I was also given guidance on methodology.
"The Review should be carried out by an
independent person and should consider and take into account:
— submissions from the police service,
the Police Authority for Northern Ireland (PANI) and the Independent
Commission for Police Complaints (ICPC), interest groups, political
parties and members of the public;
— fact-finding studies into the operation
of the current systems;
— other relevant analysis of the effectiveness
of the existing system; and
— best practice in the development
and management of police and public sector complaints procedures
world-wide."
Annex B
DR MAURICE
HAYES REVIEW:
PRINCIPLES UNDERLYING
SYSTEM
The main principles which should underpin a
police complaints system in Northern Ireland are:
— The Chief Constable should be responsible
for discipline in the force and should be accountable to the Police
Authority for Northern Ireland (PANI) for it.
— The public should have confidence
in the system.
— The police should also have confidence,
"including a genuine belief that misconduct . . . will be
detected and appropriately dealt with"and that the system
will reinforce " . . . high standards of ethical conduct
and integrity, which are recognised as having strong leadership
support."[1]
— The system should be open, fair,
easily understood and widely accessible.
— It should not be burdened by an excess
of paperwork.
— It should be affordable.
Additional comment from Hayes Report (Executive
Summary Page v)
"The main value which was impressed
on me was independence, independence, independence."
1 The Hon Justice Wood, paragraph 3.2 of the Interim
Report of the Royal Commission into the New South Wales Police
Service. Back
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