Select Committee on Northern Ireland Affairs Third Report

3  The Police Ombudsman for Northern Ireland


30.  The Police Ombudsman for Northern Ireland provides an independent, impartial police complaints system. The powers and duties of the Ombudsman are set out in the Police (Northern Ireland) Acts 1998, 2000 and 2003 and other primary and secondary legislation.[53] For the year 2006-07, the office had a net operating cost of £8.4 million and 140 full time equivalent staff.[54]

31.  Mrs Nuala O'Loan, the first Police Ombudsman, took office on 6 November 2000 for a term of seven years; the current Ombudsman, Mr Al Hutchinson, replaced Mrs O'Loan on 6 November 2007. Our predecessor Committee conducted a brief inquiry into the functions of the Office of the Police Ombudsman for Northern Ireland, and published a Report in February 2005. That Committee commended the work of Mrs O'Loan and her staff in "constructing from scratch a credible police complaints service in Northern Ireland".[55]

32.  A 2006 report from Healing Through Remembering acknowledged the important contribution made by the Police Ombudsman's investigations:

The considerable legal powers of the office of the Police Ombudsman in terms of compelling witnesses as well as capacity to access relevant files including intelligence information, and the apparent dogged persistence with which that office has gone about its work, have made it quite a powerful tool of truth recovery in the field of policing.[56]

Other commentators have been more cautious. The views of BIRW on the Ombudsman's work were that "the outcomes there have been patchy" and "we have found the Police Ombudsman's Office much less family friendly than the Historical Enquiries Team".[57]

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

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