Historic remit
33. In 2001, the Ombudsman's remit was extended
to include historic cases. The RUC (Complaints) Regulations 2001
created a statutory obligation for the Ombudsman to investigate
'grave or exceptional' cases where the incident occurred more
than a year ago and involved allegations of police misconduct.
The Ombudsman told us that he was under a statutory obligation
to investigate these issues, saying "I have no discretion
and whatever comes to me I will eventually have to deal with."[58]
Historic complaints to the Ombudsman can arise as a result of
referrals from a variety of sources, including members of the
public, the Director of Public Prosecutions and the Chief Constable,
PSNI. Other cases have been referred to the Ombudsman by the Secretary
of State as a result of judgments against the UK by the European
Court of Human Rights. These include the cases of McKerr, Burns
and Toman.[59] However,
the number of historic complaints to the Ombudsman increased significantly
after the HET project began operations in 2006, and the Office
started to receive referrals from it. The Sapphire Team was established
within the Ombudsman's Office to respond to these referrals from
HET and there is also a Significant Investigations Team which
deals with significant and historical investigations—around
35% of the staffing resource within this team is currently dedicated
to historic cases.[60]
According to figures provided in February 2008, there were 983
investigations then underway in the Office of which 116 were historical
(54 of them HET referrals[61])
and it is estimated that there will be a further 300 referrals
in total from the HET.[62]
34. The Ombudsman told us that difficulties had
been encountered in securing sufficient additional funding to
resource the additional work created by the extended remit. He
explained that "when the Police Ombudsman was required by
Parliament in 2001 to undertake investigations of matters more
than a year old, funding was sought on a number of occasions to
facilitate this work".[63]
The previous Ombudsman, Mrs O'Loan had submitted a business case
to the NIO in January 2006, requesting an additional £750,000
per annum for the period of the HET project. Some funding was
made available, but not the full amount requested:
During the three months to the end of March 2006
a commitment of £93,000 was made and utilised in setting
up the dedicated team (Sapphire Team) for responding to HET referrals.
During the year 2006/2007 a further £497,000 was utilised,
the costs relating primarily to the contracting of retired Police
Detectives from England or Wales to undertake this specific work.
There has been a general assurance provided by the
NIO after this period that in the context of the six-year resource
plan established by the Chief Constable [for the HET] £895,000
per year would be allocated to the Office. This resource represents
only part of the overall resource utilised by the Office on HET
work and other major investigations which have been ongoing within
the Office under the statutory requirement to investigate any
grave or exceptional matter from the past.[64]
35. Some staff have been reassigned from current
investigations in order to assist with historical work. The Ombudsman
observed that:
this impacts on the capacity of the Office to respond
to current referrals from the Chief Constable, for example matters
such as deaths in custody or fatalities as a result of police
operations, or to current significant and serious complaints.[65]
We were told that there have also been difficulties
recruiting suitably skilled staff:
The pressure on the Office is compounded by the limited
availability of skilled, experienced and appropriate staff, to
manage, lead and undertake such investigations. There has to be
a balance of Investigation Officer experience and decision-maker
experience to enable the 360o investigation that such
cases merit and require and to comply with the requirements of
Article 2 ECHR. The complexity of the cases and the gravity of
the issues immediately necessitate significant managerial involvement.
There are huge risks (including risks to the life of persons who
may be identified in the course of an investigation) and there
are public-police confidence issues present in each case. These
risks have to be managed and dealt with at the highest level,
and the attention given to such cases has the potential to divert
focus from the work of today's police complaints system.[66]
36. The volume of work arising from historic
cases, in particular those arising out of the work of the HET,
is causing the Ombudsman to have concerns about the ability of
his Office to cope with its remit. He told us that:
I have become very concerned. I have now been three
months on the job and I am concerned about quality, the impact,
our capacity for the future, and strategically looking at it we
could come to that point where we will be sinking.[67]
The Ombudsman explained that some historic investigations
had been suspended indefinitely due to lack of resources,[68]
and that this too was affecting public confidence in his Office.
He stated that:
it is impossible, given the number of complex investigations,
to provide realistic timescales as to when an investigation will
become a priority. The risk to the Office, deriving from this
situation, in terms of public confidence is significant.[69]
He said that:
our satisfaction levels, according to surveys, are
starting to slip [and that] there is no doubt it is impacting
on our current delivery of cases because what we are doing is
taking the experienced police officers, investigators, and putting
them onto historic investigations because that is where we need
the quality.[70]
In conclusion, he stated that "The work of dealing
with the past and the headlines that these cases generate have
the potential to undermine and reduce the perceived importance
and relevance of today's police complaints system."[71]
He also suggested that confidence in policing was being eroded,
stating that "the past is bleeding into the confidence of
this present police organisation" and that "confidence
is diminishing in present policing."[72]
37. The Ombudsman estimated that should there
be no change in the respective remits of the Ombudsman and of
the HET, then his office would have to seek additional funding
of around £2 million to £3 million per year to enable
him to fulfil his statutory duties with regard to the historic
work.[73] We note that
the Patten report contained the following observation about the
funding of the Ombudsman's Office:
The Police Ombudsman should be, and be seen to be,
an important institution in the governance of Northern Ireland
and should be staffed and resourced accordingly. Budgets should
be negotiated with and finance provided by the Northern Ireland
Office (or its successor department) both for the core staff of
the office and to provide for exceptional demands created by large
scale investigations.[74]
38. Paul Goggins MP, Minister of State for Northern
Ireland, did not accept that the Ombudsman's Office had been under
funded and stated that its financial bids had been met in full.
However, he also said that he had asked the Ombudsman to prepare
a business case for what he regarded as necessary to meet the
growing workload, and that he would then assess what investment
was necessary for the future.[75]
Alternatives for the future
39. The current Police Ombudsman, Mr Al Hutchinson,
published his views on 'policing the past' in his final public
report before standing down from his position as the Policing
Oversight Commissioner.[76]
In that report he identified the difficulties of dealing with
the past as one of four future challenges facing policing in Northern
Ireland. He suggested that "policing practices of the past
are clearly influencing perceptions of present-day policing in
Northern Ireland" and that such perceptions were "an
issue hindering the forward progress of policing". In his
view:
organisations such as the Historical Enquiries Team
and the Ombudsman's office are blunt instruments too narrowly
focused to use in a search for truth and justice for societal
challenges [and] all the pieces are in place to deliver the new
beginning to policing in Northern Ireland, but … the issues
of the past have established a barrier in the road toward re-establishing
the trust necessary for fully achieving that goal.[77]
40. Mr Hutchinson made it clear to us that in
his view the work of the Ombudsman's historic investigations must
continue, saying "this piece of work has to be done …
somebody has to continue to do that".[78]
He stressed that the Police Ombudsman would always need a role
to look retrospectively beyond twelve months, but explained that
it was the period from 1968 to 1998 that was causing a serious
problem for his Office.[79]
He suggested that, instead of the current arrangements, there
could be "an independent impartial organisation separate
from both the PSNI and the Police Ombudsman capable of investigating
all matters in a manner that would provide a sustainable process
compliant with the United Kingdom's obligations under Article
2 ECHR."[80] He
stated that "this agency group would have to be removed from
the police to have independence and to have the confidence of
the broad public."[81]
He explained that a single organisation would reduce unnecessary
duplication of investigations and enable significant cost savings
to be made:
Such a single organisation would also benefit from
the ability to deal with an incident or incidents as one investigation,
with one set of disclosure imperatives, as opposed to the current
situation, which requires two separate investigations where police
officers and non police officers may have been involved in the
same incident. In those circumstances the disclosure requirements
are significantly complicated, and may have the effect of undermining
any subsequent trial.[82]
41. BIRW supported the Ombudsman's proposal,
stating that
It is attractive because it would do away with any
duplication between the two organisations of which there is inevitably
some … It would also overcome the problem that the Police
Ombudsman has which is that his remit is limited to police misconduct
and he cannot look at the bigger picture.[83]
The Police Federation described the historic remit
of the Ombudsman as a "legal straitjacket" and proposed
that the legislation be amended to enable the Ombudsman to focus
on complaints relating to events which had occurred after 1998.[84]
As we discussed in the previous chapter, the Chief Constable told
us that if the HET were to be transferred from the PSNI to a separate,
independent body, he would not be against this different arrangement,
but he was doubtful whether it would relieve the pressure on the
PSNI. [85]
42. The Minister of State acknowledged that there
was a build-up of work in the Ombudsman's Office, and was aware
of the proposal that the historic work should be reassigned to
an alternative body. However, his view was that it was "principally
a positive thing" that the Ombudsman retained the historic
remit,[86] and questioned
whether any other body would command an equivalent level of expertise,
independence and confidence.[87]
He stated that he intended to "wait and hear what Lord Eames
and Denis Bradley have to say about this issue" before reaching
any decision.[88]
43. The Patten Report underlined
the importance of an independent, properly resourced Ombudsman's
Office which had community confidence and support. Our predecessor
Committee noted in 2005 that Northern Ireland's first Police Ombudsman,
Mrs Nuala O'Loan, had constructed from scratch a credible police
complaints system in Northern Ireland. However, the extension
of the Ombudsman's remit to include historic cases is having a
damaging effect on the efficiency of the Office. The number of
complaints about the former Royal Ulster Constabulary (RUC) arising
from the years of the Troubles and the inadequate provision of
additional resources have compromised the Ombudsman's ability
to investigate complaints against the PSNI. There is a risk that
this reduced capability will damage public perception of the Ombudsman's
Office and public confidence in policing.
44. We have considered the case
for a transfer of responsibility to carry out historical work
from the Ombudsman to a newly-created independent body. We have
also considered whether the Historical Enquiries Team, part of
which is based in London and is staffed entirely by officers and
former officers from forces outside Northern Ireland, could take
on this function, or whether the resources of the Ombudsman's
office should be increased, to allow him to carry out historical
work without impacting on his core responsibilities. We are, however,
mindful of the Minister's comment that he prefers to await the
conclusions of the Eames/Bradley Group before reaching any decision.
We, too, wish to avoid pre-empting any conclusion that the Group
may come to on this issue. We therefore make no recommendation
in this Report, beyond noting that the question of who has responsibility
for conducting investigations into grave or exceptional cases
involving alleged police misconduct in the period before the establishment
of the PSNI is of the utmost importance, and that it will have
to be resolved sooner rather than later. We intend to return to
this.
53 The Police (Northern Ireland) Act 1998 received
Royal Assent in July 1998, after the Belfast Agreement was signed
(on Good Friday, 10 April 1998). However, most of its Commons
stages were completed before that Agreement was concluded. Back
54
Police Ombudsman for Northern Ireland, Annual Report and Accounts
2006-07, HC (2006-07) 659, p 62-70 Back
55
Northern Ireland Affairs Committee, Fifth Report of Session 2004-05,
The Functions of the Office of the Police Ombudsman for Northern
Ireland, HC 344, para 27 Back
56
Healing Through Remembering, "Making Peace with the Past",
2006, p 55 Back
57
Q 371 Back
58
Q 80 Back
59
Q 79 Back
60
Ev 116 Back
61
Q 86 Back
62
Q 86 Back
63
Ev 115 Back
64
Ev 116 Back
65
Ev 116 Back
66
Ev 117 Back
67
Q 87 Back
68
Ev 117 Back
69
Ev 118 Back
70
Q 94 Back
71
Ev 118 Back
72
Q 105 Back
73
Qq 87-88 Back
74
A New Beginning: Policing in Northern Ireland, "The Patten
Report", September 1999, para 6.41, p 37 Back
75
Q 566 Back
76
Office of the Oversight Commissioner, Report 19, May 2007, pp
215-216 Back
77
Ibid. Back
78
Q 118 Back
79
Q 124 Back
80
Ev 118 Back
81
Q 117 Back
82
Ev 118 Back
83
Q 370 Back
84
Ev 134 Back
85
Q 59 Back
86
Q 563 Back
87
Q 562 Back
88
Q 564 Back
