Written evidence from the Northern Ireland
Office
INTRODUCTION
1. The legacy of the past remains one of
the greatest challenges facing society in Northern Ireland and
continues to have significant implications for almost every area
of NIO work and in particular for agencies such as the PSNI.
2. In looking to address the legacy of the
past many different initiatives have been put in place, not only
formal public inquiries into specific incidents but also more
general methods of investigation into past crimes and most importantly
the provision of services for victims and their families.
3. It is inevitable that investigations
and inquiries into past incidents that have involved alleged criminal
acts will require the participation and co operation of the PSNI.
The primary objective of any law enforcement agency is to investigate
crime and that requirement is not nullified by the passage of
time. Both the PSNI and the Government also have specific obligations
in this regard under the European Convention on Human Rights and
the Human Rights Act 1998.
4. The Government recognises the additional
burden placed on the PSNI by the need to respond to the demands
of the public inquiries and investigations, and the potential
impact this has on the availability of resources for the investigation
of recently committed crimes. It also recognises the need of families
of victims to have the circumstances surrounding the loss of loved
ones appropriately investigated.
5. The memorandum sets out briefly the facts
on costs associated with public inquires and other historic investigations
and the broad impact on the PSNI, in the context of both the funding
levels the PSNI receives in comparison with other UK police services,
and of the broader actions taken by Government to help address
the legacy of the past. It also sets out the position regarding
the protection of sensitive information under the Inquiries Act
2005.
FINANCIAL COSTS
ASSOCIATED WITH
INQUIRIES
6. The PSNI do not receive specific extra
funding to help them meet their obligations to public inquiries
and other historic investigations, the exception being the Historic
Enquiry Team project where separate funding has been made available.
The HET began operations in 2006. Separate ring fenced funding
is made available by the NIO to all participating organisations
ie the PSNI, Police Ombudsman for Northern Ireland, FSANI and
the PPS. Expenditure details for the HET project are set out in
Table 1.
7. The HET project was established 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
and ensure that all investigative and evidential opportunities
are examined and exploited in a manner that satisfies the PSNI's
obligation of an effective investigation article 2 code of ethics
for PSNI and "to do so in a way that commands the confidence
of the wider community".
8. The work is being carried out by the
specific HET unit within both PSNI and the Office of the Police
Ombudsman (see section on Police Ombudsman below). The PSNI HET
is staffed by police officers and civilian staff recruited within
both Northern Ireland and GB.
9. The Office of the Police Ombudsman has
also played an important role in carrying out investigations into
past events. It is responsible for investigation of cases where
a police officer has been directly responsible for a death or
where the conduct of a police officer may have resulted in a death
or where a complaint has been made. Since the establishment of
the office in November 2000 approximately nine reports have been
produced into events occurring before 1998. In the vast majority
of cases the families of victims whose cases (both pre and post
1998) that have been investigated by the Office of the Police
Ombudsman have expressed their satisfaction with the outcome.
10. The PSNI have estimated that the financial
cost to their organisation of servicing inquiries and investigations
into past cases is likely to be in the region of £96 million
covering the period 2006-07 to 2012-13. It must be emphasised
that these costs are estimates based on assumptions about future
workloads associated with the existing public inquiries and the
need to respond to the requirements of the Coroner in respect
of reopened and potentially controversial inquests. They also
include the costs associated with the Historic Enquiry Team project
for which separate funding has been provided.
11. Although these costs are large and undoubtedly
present financial challenges for the PSNI and for the delivery
of an effective policing service it needs to be balanced by the
fact that the PSNI still receives more funding than any comparable
police service in the UK. Indeed in looking at the costs in must
be remembered that many costs are personnel related and as such
funding is already provided as an integral part of the budget
for the police service.
CONSULTATIVE GROUP
ON THE
PAST
12. The Government believes that the time
is right to reflect on how to address the legacy of the past more
generally. In June 2007, the then Secretary of State established
an Independent Consultative Group on the Past. The Group's terms
of reference are:
"To consult across the community on how
Northern Ireland society can best approach the legacy of the events
of the past 40 years; and to make recommendations, as appropriate,
on any steps that might be taken to support Northern Ireland
society in building a shared future that is not overshadowed by
the events of the past. To present a report setting out conclusions
to the Secretary of State for Northern Ireland by summer 2008.
The group are currently conducting a public consultation exercise
and I look forward to receiving their findings in due course.
I have no doubt it will add greatly to achieving a consensus on
an acceptable way forward.
13. The Group is currently conducting a
public consultation exercise.
THE INQUIRIES
ACT 2005
14. The Inquiries Act 2005 provides a comprehensive
statutory framework for inquiries into events that have caused,
or have the potential to cause, public concern. The Act replaced
a wide collection of legislation on inquiries that had grown up
in various areas over the past century or so. Like most of the
legislation it replaced, the Act provides powers for an Inquiry
Chairman to compel the production of evidence and the attendance
of witnesses at his inquiry. These powers are set out in section
21 of the Act. Section 22 of the Act makes clear that the Inquiry
Chairman's powers of compulsion are subject to the same exceptions
for privileged information as apply in the civil courts (including,
for example, the rules on legal professional privilege). Section
22 also makes clear that the Public Interest Immunity rules apply
in the same way as they do in the civil courts.
15. The Inquiries Act also contains a framework
to ensure the protection of sensitive information once it has
been provided to an inquiry. Although section 18 sets out a general
rule that evidence must be made available to the public, section
19 allows either the Inquiry Chairman or the Minister who established
the Inquiry to place restrictions on the publication of evidence
and on public access to hearings, if such restrictions are required
by law or are in the public interest. In determining whether any
such restriction is in the public interest, the Minister or Chairman
is required to take into account a range of factors set out in
the Act, including any risk of "harm or damage" which
could be avoided or reduced by imposing the restriction. "Harm
or damage" includes death or inquiry, or damage to national
security.
16. The Act therefore provides three mechanisms
by which sensitive information, such as information which might
identify a covert source, might be protected:
— A restriction order may be made
by the Panel Chairman to prevent the information being disclosed;
— An application to the Minister
for a restriction notice to prevent the information being disclosed
by the Inquiry Panel; or
— An application for Public Interest
Immunity (either to prevent the information being disclosed by
the Inquiry Panel or, in exceptional circumstances, an application
to prevent the information being disclosed to the Inquiry Panel);
Any decision on which mechanism should be used
would need to take into account the particular circumstances.
17. Two of the current Northern Ireland
public inquiries are taking place under the Inquiries Act: The
Robert Hamill Inquiry and the Billy Wright Inquiry. Both Inquiries
were established under other legislation but were converted to
the Act at the request of the chairmen. The Rosemary Nelson Inquiry
is taking place under section 44 of the Police (Northern Ireland)
Act 1998. The Bloody Sunday Inquiry is taking place under the
(now repealed) Tribunals of Inquiry (Evidence) Act 1921.
IMPACT OF
THE INQUIRIES
ACT 2005 ON
THE PUBLIC
PROSECUTION SERVICE
18. The Inquiries Act 2005 does not impact
upon the Public Prosecution Service in exercising its discretion
to prosecute. It may, however, impact on criminal proceedings.
19. If an inquiry is initiated, there would
be a serious risk that any contemporaneous or subsequent prosecution
would be compromised. This could happen in a number of ways. Primarily,
the public reporting and discussion of evidence that would inevitably
arise during the course of an inquiry is liable to create a substantial
risk of serious prejudice to the trial process. In addition difficult
issues of disclosure, admissibility and conflicting evidence are
likely to occur as the inquiry begins its own investigations.
The difficulties are liable to be greater if the prosecution is
to take place before a Judge sitting with a jury.
20. The giving of undertakings by the Attorney
General or the Director as to the use made of evidence given to
an inquiry is not without difficulty. The purpose of any inquiry
would be to get at the truth of the matter enquired into and it
is inevitable that the Attorney General or the Director would
be invited to provide an undertaking as to the use of evidence
given. They would then balance the public interest in giving an
undertaking which would allow witnesses to give full and complete
accounts of what happened without fear of incriminating themselves
against the public interest in not allowing possible prosecutions
to be compromised.
21. Even if there were other evidence on
which to base a prosecution, it is likely that a defendant would
put forward an abuse of process argument that it would be unfair
to prosecute in all the circumstances. If successful such an occurrence
would damage public perceptions of the prosecution process. Again,
the difficulties are liable to greater if the prosecution is to
take place before a Judge sitting with a jury.
Covert Sources
22. Prosecutions in Northern Ireland are
initiated or continued by the Prosecution Service only where it
is satisfied that the test for prosecution is met. The test for
prosecution is met if the evidence which can be adduced in court
is sufficient to provide a reasonable prospect of conviction—the
evidential test; and prosecution is required in the public interest—the
public interest test.
23. The existence of a "covert source"
is liable to be a complicating factor. A number of issues may
arise. Is the covert source capable of giving credible evidence
which would advance the prosecution case. If the "covert
source" is not a witness (and this would be a very unlikely
occurrence), can the prosecution meet its duty of disclosure to
the defence.
24. The prosecution is under a duty to disclose
evidence or information which may assist the defence or which
undermines the prosecution case. If the prosecution can only meet
this duty by revealing to the defence the existence of the "covert
source" and the evidence and information which he holds,
then a decision would have to be taken to determine whether, in
these circumstances, prosecution was required in the public interest.
The value of the "covert source" may be such that having
regard to the advice of police, the Prosecution Service would
not be willing to disclose these matters and a decision for no
prosecution would be reached.
25. In reaching this decision the Prosecution
Service would bear in mind Article 2 of the European Convention
on Human Rights.
26. There may be cases where it would be
possible to make disclosure under the supervision of the court
which protected the existence of the "covert source"
or sensitive evidence or information.
27. Each case must be addressed on its own
facts.
Table 1
EXPENDITURE DETAILS FOR THE HET PROJECT—TOTAL
HET BUDGET OVER SIX YEARS IS £34 MILLION
| Organisation |
Rounded Expenditure to 31 October 2007 |
| PSNI HET | £11.4 million
|
| PPS | £488k |
| FSNI | £654k |
| OPONI | £1.16 million |
| Total HET spend | £13.7 million
|
Northern Ireland Office
24 January 2008
| |
| 
