Select Committee on Northern Ireland Affairs Third Report

2  The Historical Enquiries Team

10.  The Historical Enquiries Team (HET) project was established within the PSNI in 2005 following discussions between the PSNI and the NIO about dealing with the legacy of the Troubles.[3] The objective was "to assist in bringing a measure of resolution to those families of victims affected by deaths attributable to the troubles in the years 1968-1998 and to re-examine all 3,268 deaths attributable to the troubles".[4] The NIO is committed to provide a total budget of £34m over six years to the project,[5] primarily for the PSNI, but with smaller allocations for the Police Ombudsman for Northern Ireland, the Forensic Service Agency of Northern Ireland and the Public Prosecution Service Northern Ireland.[6] The aims of the project were defined by PSNI as follows:

We envisage a re-examination process for all deaths attributable to the security situation with case reviews leading to re-investigation in appropriate circumstances where there are evidential opportunities.

Families will sit at the very heart of our investigations. The primary objective will be to work with them to achieve a measure of resolution in these difficult cases. … The second objective will be to enable a sense of confidence among those directly affected and the wider public that all these cases will be comprehensively examined to current professional standards, to the extent that as an organisation we can be satisfied that all evidential opportunities have been explored.[7]

11.  We visited the HET office near Lisburn in March 2008 and met members of the management team, other members of staff and a number of families whose cases had been investigated. During this visit, we were given an overview of the HET project administration and staffing arrangements, which can be summarised as follows. During 2005, the HET office was established, premises refurbished and staff recruited, and in January 2006 the project became operational and started investigating cases. Mr Dave Cox, a former Commander in the Metropolitan Police, was recruited as the Director of HET, reporting directly to the Chief Constable. The project initially had a staff of about 80, but the Team has since grown to around 180.[8] Staff retention has been a problem. Mr Cox told us that in the first year there had been a 40% turnover in staff, in part because of the need for staff from outside Northern Ireland to live away from home during the week.[9] Of the 180 staff, around four are serving police officers and the remainder are retired police officers and civilian support staff, recruited within both Northern Ireland and Great Britain.[10] The Patten recommendation that the composition of police service staff should be broadly reflective of the population of Northern Ireland, particularly in terms of political or religious tradition and gender, has not been applied to HET staff. There are two distinct review and investigation teams within HET, one of which is staffed exclusively by officers seconded from police forces in Great Britain. This team was created to "deal with those specific cases where independence is essential and where sections of the community or individuals are not yet comfortable working with the Police Service of Northern Ireland."[11] The other team is staffed by serving and retired police officers from the PSNI and the former RUC. Most staff are located in Northern Ireland except for a small team which investigates exceptional cases relating to serious collusion allegations. This is located in Putney, London, partly in order to demonstrate independence, and also to facilitate recruitment of staff from outside Northern Ireland.

12.  The project's remit includes "all deaths attributable to the security situation" between 1968 and 1998, but does not include cases relating to attempted murders, punishment shootings and other injuries. [12] HET investigators carry out an initial review of each case, including those where there have previously been convictions, and whether or not the review is requested by the family of the victim. The team aims to build up as complete a picture as possible, linking interconnected cases so as to understand the activities of organised and serial killers, identifying all of those involved in the killings (rather than just those who had previously been convicted) and providing as much information as possible for families, some of whom were now ready to engage, but others who would not perhaps be ready until an older relative who did not wish to be reminded of past events had died.[13] In many cases, no information had previously been provided to families, partly because of the lack of resources at the time of the death, and also because of the need to avoid providing information which could have assisted paramilitaries. To date, families have participated in 62% of the completed reviews. Many families who did not respond to the initial contact chose to participate at a later stage, after the review had been completed.[14] New cases are opened primarily on a chronological basis, starting with the earliest from 1968 onwards, but some are taken out of sequence for various humanitarian reasons, or where they are part of a linked series or for some other good reason. Each case goes through the same process of assessment, review, focussed re-investigation and resolution to identify if there are any realistic prospects of taking an investigation further. There has been good cooperation from retired police officers,[15] and assistance and access to historical records have been provided by the Public Prosecution Service.[16]

13.  At any stage, where evidence of serious criminal conduct by police officers is identified, the Office of the Police Ombudsman is notified, in accordance with the legislation.[17] We were told during our visit to the HET that to date, 44 cases of alleged misconduct by a police officer have been referred to the Police Ombudsman. Since the Ombudsman has no remit to investigate paramilitary murders or deaths involving military actions, in some cases separate but parallel investigations are carried out by the HET.[18]

14.  According to data provided in May 2008, 1,107 cases have been opened; of these, the review process has been completed for 363 cases.[19] The completion of a case does not mean that it is closed, because there may still be further questions from families.[20] Mr Cox explained:

… that does not mean that we regard those cases as closed because … we work to a standard of answering the questions that families put to us and in many cases these are not legal questions, the worries that families have are basically around could this have been prevented, was there a proper investigation, down to the saddest of personal questions …We are working with over 600 families and we have logged 4,000 issues that have been raised with us.[21]

The original target had been to open and close 40 cases a month, but this has not been achieved, primarily because the final phase of providing resolutions acceptable to families has taken longer than expected but also because of the complexity of some of the cases.[22] In addition, the HET has had to absorb the investigations required by the publication of the Police Ombudsman's 'Operation Ballast' report into alleged collusion, which required it to establish an entirely new external team, at a cost of approximately £1.6 million per annum.[23] The latest estimate is that the final set of cases, relating to 1998, will be opened in December 2011, and that after that "a considerable number may remain open whilst complex investigations are completed."[24]

15.  In May 2008, the HET had reached 1973 in its chronological process of opening new cases.[25] Of the completed reviews, one case has been referred to the Director of Public Prosecutions Service (DPP) for prosecution and a further eight have been forwarded for advice.[26] Both the Chief Constable and the Director of Public Prosecutions suggested that the number of prosecution cases might increase once the HET started to investigate more recent cases from the 1980s and 1990s, given that more computer evidence, records and witnesses might be available, but the Chief Constable made it clear that overall the opportunities for prosecutions would be limited. Sir Hugh said:

Do I see the HET as prosecuting lots of people? No, I do not. Does that mean there will be no prosecutions? No, I think there may be some but the opportunities are limited.[27]

16.  The HET does not have an objective system of measuring outcomes for families, although it has considered commissioning an external evaluation.[28] Mr Cox explained the difficulties involved in representing the range of responses from families:

HET experience of meeting and working with families indicate that there is an enormous spectrum of family responses, which must be factored into evaluation of this complex area. We work with families who feel very badly let down by 'the system', and who start with very little confidence in the HET. We meet people who have, in the absence of factual information, created their own narratives of events, and take some time to accept or even explore factual information that differs from their own perceptions. We meet with families who are openly hostile to HET, perhaps not because of the HET process, but because they are angry and dealing with their own grief or emotions. People's views change over time and we have many letters from people who start off hostile, but who six months later write to say they are very glad they engaged.[29]

The evidence suggests that there has been a range of responses from families to the HET project. During our visit, we met some families who had been through the process. Whilst they had different reactions to the outcomes of the HET investigations, they were, without exception, grateful for the sensitivity and consideration shown to them by HET staff and complimentary about the leadership and professionalism of the Director, Mr Cox. A similar picture was presented by Ms Jane Winter, Director of British Irish Rights Watch (BIRW). She had encountered mixed reactions and said that:

Some people have been very, very pleased with the work of the HET and feel that they have really achieved some closure to the loss of their loved one and other have been critical about mistakes in the report and so on. The one thing we have always found is that the HET are very, very family friendly.[30]

WAVE, an organisation which provides support and training services to people who have been bereaved, traumatised or injured as a result of the Troubles, noted the benefits to families of the HET's work. The Director, Mrs Peake explained that:

From speaking to a number of people who have come through that process from the early 1970s, the fact that someone is sitting down, listening, coming back with answers, adhering to promises and undertakings they have given, has validity. Even to record at the time that an investigation was not adequate or things were overlooked, there is something very positive for families in relation to having that process.[31]

17.  BIRW however also noted that progress was slower than expected. It stated that:

Given the number of cases the HET has yet to investigate, and given the simple arithmetic outlined above and the complexity of many of the cases the HET is called upon to investigate, it seems likely that the £34 million budget—not all of which is attached to the HET—and the six year deadline for dealing with outstanding murders is unrealistic.[32]

According to information provided to us by the NIO, the total expenditure by the HET up to 31 October 2007 was £13.7 million (of which £11.4 million was spent by PSNI).[33] The HET's projected expenditure for 2008-09 to 2012-13 is £31.37 million.[34] Since PSNI's original share of the NIO's HET budget was £26 million,[35] the projections indicate that, based on current estimates, the project will overspend its original budget allocation by 60% (£16.77 million).[36] Mr Cox acknowledged that additional funding would be required and told us that:

The Chief Constable of the PSNI and the NIO are aware that the HET's work will extend beyond the current project funding. However, the establishment of the Bradley/Eames Committee on dealing with the past means that all parties will await their findings and recommendations before embarking on further financial planning.[37]

18.  BIRW argued that the HET must be allowed to continue, and given the additional resources necessary to enable it to complete its work:

It is obvious when one looks at the sums and the number of cases they have managed to close so far that they are going to overshoot that target; they are not going to make it in six years. … I am arguing that they should be given the resources that they need to finish the job, even if it takes longer that originally anticipated.[38]

The Historical Enquiries Team, because of its openness and its willingness to engage in dialogue with families is, I think, helping to restore confidence in modern policing and some of that thinking is also taking root within the PSNI who are themselves becoming more family centred ….I feel that to just disband the HET in the middle of its work would do more harm than good.[39]

19.  Some witnesses suggested that rather than providing additional funding, the scope of the HET should instead be reduced. The Police Federation stated that whilst it had supported the creation of the HET, what it had envisaged as a straightforward information sharing exercise with the families of victims had turned into a much bigger exercise. It suggested that one way of limiting the scope of the HET would be to confine its investigations to those referred to it through the Victims' Commissioners acting at the request of a family.[40] Mr White, Chairman of the Northern Ireland Retired Police Officers Association (NIRPOA) said that his members supported the HET's objective to provide information to families who wished to know more about the circumstances of the death of their loved one, but he expressed concern that "a Rolls Royce industry had been created" and that since £34 million had been ring-fenced for the project, "structures will be put in place to spend that money", despite the fact that "the reality of achieving a prosecution is extremely limited."[41] The former Victims' Commissioner, Sir Kenneth Bloomfield's view was that funding of the various historical enquiries should be a lower priority than the provision of practical support to victims. He said that:

For me, there seems something rather perverse about a situation where over a great many years a large number of people were very properly convicted for committing atrocious crimes and then in the context of the political settlement the jails were emptied and they are all out again. For what purpose do we devote quite so much of a resource, human resource and financial resource, to pursuing all of these old cases because clearly what we are not going to do is end up locking more people up.[42]

He stated that "there was something to be said for" scaling down the remit of the HET,[43] and suggested that the Chief Constable should be asked to propose how this could best be done so that historical work no longer led to the diversion of police officers away from current policing priorities.[44]

20.  Another issue raised by witnesses was the independence of the HET, given that its Director reports to the Chief Constable of the PSNI. BIRW stated that "One of HET's difficulties is that it is not seen as being sufficiently independent by some people."[45] Sinn Féin suggested that "PSNI cannot deal with the past" and that "there needs to be the establishment of a credible, independent mechanism which treats all victims equally without political bias."[46] It also stated that "the legacy issues need an island-wide approach".[47] The Committee on the Administration of Justice (CAJ) reported that:

some families will not engage with the Historic Enquiries Team because it is part of the Police Service in Northern Ireland, they see it as intimately tied in institutionally to the police and therefore they do not want to engage.[48]

As we have already noted in paragraph 11, there is within the HET a separate investigation team staffed entirely by officers with a non-PSNI, non-RUC background. We did not hear any allegations of bias on the part of the HET from the five families we met.

21.  The Chief Constable told us that he was committed to keeping the HET project going for as long as it was needed, because it was adding more value than it was costing in financial terms. He stated that "if it was the will of Parliament or Stormont" that the HET should be run by an alternative, independent body, he would not be against such an arrangement. However, he added that, as gatekeepers of the information, there would still be pressures on the PSNI to service the HET.[49] He explained that he did not wish "to be rid of" the HET, because it demonstrated a positive commitment by the PSNI to fulfil to duties:

…what [the establishment of HET] said was a very clear statement about modern policing, which was that we were not running away from anything, we were absolutely up for facing the issues … it shows our determination to deal with what is a police duty, which is to investigate and not to give up on unsolved cases.[50]

22.  However, he accepted that if no additional funding were to be made available for the HET, then it would have an impact on the resources which he had available for current policing activities, and stated that "the reality of course, is if there is no more additional money, that, like everything else will be drawn out of my current budget".[51]

23.  We note that in some cases, the Government has a legal obligation to reinvestigate historic cases, and that these investigations must meet the standards set down in Article 2 of the European Convention on Human Rights (ECHR). While the obligation to carry out an effective investigation into unlawful or suspicious deaths comes into play primarily in the aftermath of a violent and suspicious death, the procedural obligation to investigate under ECHR Article 2 may be revived in certain circumstances. The European Court of Human Rights has interpreted Article 2 as meaning that

where there is a plausible or credible allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrator of an unlawful killing, the authorities are under an obligation to take further investigative measures. The steps that it will be reasonable to take will vary considerably with the facts of the situation.[52]

The HET's remit currently includes some cases where there is a legal obligation to investigate, and also cases where there is no legal obligation to investigate.

24.  During our visit we noticed that whereas the material relating to some cases was extensive, that relating to others was sparse. This is hardly surprising given that computers were little used in investigative police work during most of the period covered by the HET. There were also more than 80 violent attacks on police stations and the forensic laboratories were twice destroyed during the Troubles. This is a significant factor that must be borne in mind. It underlines the fact that not all cases can be dealt with equally thoroughly.

25.  We were impressed by the personal commitment, sensitivity and professionalism of the Chief Constable, the Director of HET and the other staff involved in the HET. The project is unique and challenging, and it is clear to us that there is a real determination to provide information and answers to those who were bereaved during the Troubles. Whilst the memories are painful, families have appreciated the efforts made by the HET team to listen to their questions and to attempt to explain the circumstances of their relatives' deaths.

26.  We were surprised to find that all cases are automatically reviewed by the HET. We accept that there are benefits in building a complete picture of often interconnected events. We also accept that a family which initially chooses not to participate in a case review may later change this view; and that there will be occasions where a family member (such as a grandchild) might only feel able to participate once an older relative has come to terms with the re-examination of painful past events, or has died. In such circumstances, the fact that the HET has carried out a comprehensive review of all cases will enable it to help families at a time that is right for them. Nevertheless, we conclude that in some cases scarce resources are being used to investigate historic cases where there is little likelihood of helping a family and limited opportunity of securing a conviction.

27.  It is clear that the HET project will need significant additional funding if it is to continue with its current approach and complete reviews of all of the deaths within its remit. We are not convinced that the funding is being targeted as effectively as it might be. We recommend that alternative ways of prioritising cases are identified so as to focus resources on those cases where the next of kin of the deceased specifically request it or where the existence of forensics or other exhibits provides investigative opportunities which could contribute to a successful prosecution case. We recommend that a mid-term project review is conducted, with a view to establishing the costs and benefits of continuing with the HET in its current form, and identifying ways in which the scope of the exercise and the prioritisation of cases could be adjusted so that the project can be completed within budget and with maximum benefits.

28.  The financial investment in the HET has been considerable, but little information about its progress and the benefits it has brought to families has been made available to the public. We recommend that the results of the review we call for above are published.

29.  We are concerned that the demands of running the HET project, and the likely overspend, might compromise the ability of the PSNI to fulfil its primary role of policing the present. We also recognise that some families and organisations have questioned whether the PSNI is sufficiently independent and would prefer the historic investigations to be managed by an independent agency. We return to this point in paragraph 40.

3   The Secretary of State announced in April 2005 that the NIO had allocated funding to the HET project. During 2005 the HET office was established and staff were recruited. The team became operational and began investigating cases in January 2006. Back

4   Ev 100. The civil rights march in October 1968 is often used as the event to define the beginning of the troubles. In practice, very few cases within HET's remit date from 1968, and the vast majority of its cases relate to 1969 onwards. The HET website refers to the start date as 1968, but other HET documents refer to 1969. Back

5   The NIO quoted the total HET budget as £34m in its written evidence Ev 102 Table 1 and £38m in oral evidence Q555 Back

6   Ev 102 Table 1 Back

7   Police Service of Northern Ireland, Policing the Past. Introducing the work of the Historical Enquiries Team Back

8   Q 8 Back

9   Qq 10 and 11 Back

10   Q 11 Back

11   Police Service of Northern Ireland, Policing the Past. Introducing the Work of the Historical Enquiries Team. Back

12   Ev 122 Back

13   Q 500 Back

14   Ev 132 Back

15   Q 513 Back

16   Q 463 Back

17   Police (Northern Ireland) Act 1998 s.55 Back

18   We consider the important question of overlapping investigations in Chapter 3, below. Back

19   Ev 133 Back

20   Q 15 Back

21   Q 15 Back

22   Ev 133 Back

23   Ev 133 Back

24   Ev 133 Back

25   Ev 132 Back

26   Q 42 Back

27   Q 512 Back

28   Ev 133 Back

29   Ev 132 Back

30   Q 367 Back

31   Q 334 Back

32   Ev 104 Back

33   Ev 102 Table 1 Back

34   Ev 125 Back

35   Ev 133 Back

36   See Ev 133 and Ev 124-125 Back

37   Ev 133 Back

38   Q 373 Back

39   Qq 374 and 376 Back

40   Ev 134 Back

41   Q 431 Back

42   Q 228 Back

43   Q 235 Back

44   Q 237 Back

45   Q 375 Back

46   Ev 135 Back

47   Ev 135 Back

48   Q 175 Back

49   Q 59 Back

50   Q 61 Back

51   Q 503 Back

52   Brecknell v UK App No. 32457/04 (2007) Back

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