Memorandum from the Police Ombudsman for
Northern Ireland
1. THE ROLE
OF THE
POLICE OMBUDSMAN
FOR NORTHERN
IRELAND
1.1 The office of Police Ombudsman for Northern
Ireland was established on 6 November 2000 by Part VII of the
Police (NI) Act 1998. The primary statutory duty of the Police
Ombudsman is to secure an efficient, effective and independent
complaints system, and in so doing attempt to secure the confidence
of the public and of the police in that system. The system involves
dealing with complaints from members of the public, and with matters
brought to the attention of the Police Ombudsman by the Secretary
of State, the Northern Ireland Policing Board, the Chief Constable
and the Director of Public Prosecutions. In addition to this matters
are referred by the Criminal Cases Review Commission, HM Coroners
and members of the magistracy and judiciary. The Police Ombudsman
has a power to investigate any matter without any complaint or
referral if she thinks that it is in the public interest to do
so.
1.2 The remit of the Police Ombudsman extends
to five Police Constabularies: the Police Service of Northern
Ireland (PSNI); the MoD Police; Belfast International Airport
Police; Larne Harbour Police and Belfast Harbour Police and to
the Serious Organised Crime Agency which was established under
the Serious Organised Crime Act 2005. The police cannot investigate
any matter where the conduct of a member of the police force may
have resulted in a death of another. Section 55(2) Police (Northern
Ireland) Act 1998 and Section 55(3) state that the Police Ombudsman
has to investigate such a matter and cannot refer it back to the
police.
1.3 The Office is situated in Belfast and
provides a 24 hour, 365 days a year "on call" investigation
facility. The Office has forged working relationships not only
with the Police Service of Northern Ireland but also with the
Director of Public Prosecutions, the Forensic Science Agency,
Her Majesty's Coroners, the Criminal Justice Inspector, Her Majesty's
Inspector of Constabulary, the Health & Safety Executive,
the Surveillance Commissioner, the Justice Oversight Commissioner,
the Social Services Boards and Trusts, the Northern Ireland Human
Rights Commission, the Equality Commission and the Commissioner
for Children and Young People.
1.4 Allegations requiring investigation
range from incivility to collusion or involvement in murder. The
current work of the Office covers some 5,000 allegations a year.
This presents a significant challenge to a relatively small office.
Some of the investigations are extremely complex. The office has
a staffing complement of 128 staff and a budget of £7,643,000.
1.5 Whilst the legislation provides a general
time limit of 12 months within which a complaint must normally
be made, Regulation 6 of the RUC (Complaints etc) Regulations
2001 provides "exceptions for certain complaints". This
gives the Police Ombudsman wide "retrospective powers"
in three categories of circumstances, two categories of which
demand, by law, mandatory investigation. This means that in such
cases, the Police Ombudsman must investigate, irrespective of
when the incident occurred if the tests set out are satisfied.
There are inherent evidential difficulties in investigating an
incident years after it has occurred. The Office has received
many of these "retrospective" allegations. Some are
deemed out of remit for a variety of reasons, or are resolved
to the complainant's satisfaction after preliminary enquiries.
However, others do require investigation.
1.6 All Investigators in the Office have
the powers of a Constable for carrying out investigations. Powers
of arrest are used sparingly, with the overwhelming majority of
investigations being completed with co-operation of police officers
and others involved. Whilst the powers are infrequently used,
they are essential to ensure confidence in effectiveness of investigations.
Provisions contained in the Police (NI) Act 2000 and Regulations
ensure that Investigators can access material required for investigations,
from PSNI. Some of the material required is extremely sensitive
and secure arrangements have been made to ensure its safe handling
within the Office. The Security and Law Enforcement Community
have expressed confidence in the way sensitive information has
been handled by the Office. Co-operation from PSNI is generally
excellent, with it having been noted that officers are being more
prepared, as time has gone by, to provide evidence against colleagues
who have acted inappropriately. This is a healthy sign and an
indication of confidence in the Police Ombudsman's investigative
processes.
1.7 Investigations are conducted thoroughly
in accordance with the law to ensure an effective "search
for the truth". The final recommendations for criminal or
misconduct proceedings are also evidence-based. Investigation
processes are based on best practice, and the use of relevant
forensic, medical, technological and other expertise. Apart from
the misconduct of officers, all investigations review whether
any policy, practice or training issues were a factor in the incident.
This has led to numerous recommendations to the PSNI, something
welcomed by the Chief Constable. An example would be training,
policy and practice deficiencies in the police use of force generally,
and particularly firearms and batons. A series of recommendations
have been instrumental in the reduction of complaints stemming
from the use of force from 52% to 36% of all complaints.
1.8 Generally the Office has been and continues
to attract wide levels of support right through the community
in Northern Ireland. Independent survey figures show that :
— 86% of people are aware of the office.
— 85% believed the Office to be independent.
— 78% believed the Office to be impartial.
— 78% thought that the Office would
help the police do a good job.
Of complainants who had used the Office internal
satisfaction surveys show that 75% would use the system again.
1.9 Given its statutory obligation to secure
confidence of the police and the public in the complaints system,
the Office, using a variety of means eg an extensive outreach
programme, continually strives to increase levels of public and
police confidence.
2. INVESTIGATIONS
BY AN
INDEPENDENT MILITARY
COMPLAINTS MECHANISM
2.1 The Police Ombudsman is responding to
a recent request from the Committee and this response is necessarily
brief. However it is the view of the Police Ombudsman that any
such system would have to be adequately resourced and empowered.
There would need to be a very clear statement as to the remit
of the independent complaints mechanism. Who can complain? What
time limits apply? What type of conduct is subject to investigation?
Who can be investigated—civilian staff or all staff?
2.2 The following powers would be necessary
to enable an independent military complaints system to work properly
and to contribute:
— The power to appoint staff.
— The power to conduct investigations
and research.
— Police and Criminal Evidence Act
powers—arrest, search, seizure of materials etc.
— An unqualified right of access to
all documentation and materials held by the organisation under
investigation.
— Powers under the regulation of Investigatory
Powers Act to conduct surveillance.
— Legal provision as to confidentiality.
— The power to recommend criminal prosecution
to the Public Prosecution Service.
— An ability to interview and take
witness statements from serving officers.
— An ability to interview and take
witness statements from retired military officers.
— It should be a criminal offence to
obstruct an investigation.
— An ability to recommend, and in relevant
circumstances direct, disciplinary action.
— The power to present disciplinary
cases to a tribunal.
— An ability to recommend changes to
military policy and practice.
— An ability to recommend training.
— An obligation to report and proper
levels of public accountability of the complaints mechanism itself.
2.2 To be effective the independent military
complaints mechanism would have to have robust but positive working
relationships with other agencies such as:
— Military Investigations Departments.
— The Public Prosecution Service.
— Forensic Science Agencies.
2.3 To secure maximum co-operation from
other agencies such a mechanism would have to demonstrate:
— Proper protection of sensitive material.
— Appropriate levels of staff vetting.
— Proper systems to protect:
— Immediate response to serious incidents.
— A secure physical location.
3. PARTICULAR
ISSUES AS
TO HISTORIC
INVESTIGATIONS.
3.1 In addition to the matters outlined
briefly above, those responsible for the conduct of investigations
into matters occurring before the time applicable under the normal
remit will have to take into account particular issues. What follows
is predicated upon an assumption that those issues might well
be the most serious of cases and may well involve investigation
into deaths.
3.2 There are additional difficulties, beyond
those normally encountered in investigation, in conducting "old"
investigations:
— Officers subject to investigation
may have retired—it will be necessary to make explicit the
jurisdiction of the independent complaints mechanism.
— Serving officers may be posted to
other jurisdictions making interview etc more time consuming by
virtue of the need to visit those locations.
— Retired officers, whether witnesses
or suspects may have to be located (and this can be a lengthy
process) before investigation can occur.
— Forensic investigative opportunities
may have diminished with the passing of time. (Conversely recent
forensic science developments may enable investigation now which
was not previously possible).
— People tend to forget detail which
can result in them appearing to be less credible witnesses.
— Recovery of documents may be difficult.
Previous investigation files and associated exhibits would need
to have been securely kept. Other documents such as incident logs
and, for example, records of military checkpoints, details of
posting of officers, video and CCTV footage, etc may be difficult
to retrieve. We have experienced lengthy delays in retrieving
evidence of this nature.
— There may be resistance within the
military to the investigation and this may result in obstruction
of or enormous delay to the investigation.
— There may be a false sense of loyalty
to the organisation to which the officer belonged which may result
in a "blue wall."
— There may be hostility to the investigating
organisation from within the community generally—deriving
again from a false sense of values which fails to recognise that
those who act criminally must be dealt with in the interests not
only of the public but also of all officers who act with integrity.
— There would have to be provision
for measures such as the double jeopardy provisions of the Criminal
Justice Act 2003 to be made applicable to the new complaints mechanism.
3.3 Finally for such an organisation to
be effective and efficient it would require a level of commitment
by government in terms of funding and political support. It would
also require high levels of co-operation from the military and
other agencies.
March 2006
| 
