Written evidence from the Committee on
the Administration of Justice
INTRODUCTION
1. The Committee on the Administration of
Justice (CAJ) is known to the Northern Ireland Affairs Committee
from previous inquiries, as an independent cross-community organisation
working to uphold human rights in Northern Ireland. The organisation
has worked on policing and criminal justice since 1981, and was
awarded the 1998 Council of Europe Human Rights Prize for its
work to mainstream equality and human rights in the peace negotiations.
CURRENT INQUIRY
2. It is difficult not to comment in passing
on the negative connotations which are already conveyed by the
formulation of the Inquiry's terms of reference. Whether it was
intentional, or quite inadvertent, the impression is given that
the Inquiry is starting from the premise that historical inquiries
are creating obstacles to good policing, and that operational
policing may be undermined. CAJ will be taking a different approach.
3. Unfortunately, time pressures particularly
relating to current discussions on the Forum for a Bill of Rights
for Northern Ireland (which CAJ also believes would contribute
to good policing), prevent us from making a major submission at
this time. We do think, however, that the Northern Ireland Affairs
Committee would be wise to give consideration to some of the issues
raised below.
4. Firstly, it is difficult in any situation
to separate "past" policing from "current"
or "future" policing. This may particularly true of
Northern Ireland, given the centrality of policing in many of
the events of past decades, but it is equally true of other places.
Could a new Met Commander disregard the Stephen Lawrence Inquiry
on the grounds that that related to "past" events? Our
learning from the past, informs our attitudes to current and future
events.
5. Secondly, such learning can both be for
both good and ill, but CAJ believes that it will be the former
in the case of the so-called "historic" inquiries. CAJ
does not contest that there are cases beyond those selected for
examination by Justice Peter Cory which might merit a public inquiry,
and we recognise that this is one of the challenges that is currently
facing the Panel to deal with the Past (the Eames/Bradley initiative).
However, the reality is that the government has publicly committed
to undertake four inquiries in furtherance to the Cory recommendations
(in addition to Bloody Sunday), and these inquiries are likely
to highlight very different issues and provide very different
learning to the police, and to the authorities generally.
6. The advantage to the police of the so-called
"historic" inquiries is that:
(a) there will be an exploration of police
action and inaction in the course of several very different phases
of the conflict, and in response to very different situations.
(b) the three inquiries already initiated
relate to a murder in prison and the police investigation of that
death (Billy Wright); the sectarian killing of a young man and
accusations of individual police wrongdoing at the scene of the
crime and in the subsequent investigative phases (Robert Hamill);
and the role the police may have played in creating an atmosphere
in which a defence lawyer was considered a "legitimate target"
by loyalist killers and subsequent events (Rosemary Nelson). In
all cases, the police procedures in and around the death, and
the subsequent investigation, and allegations of collusion between
state agents and loyalist or republican paramilitaries, need careful
scrutiny. (The fourth case—that of Pat Finucane—is
even more centrally located in the debate on what is an appropriate
role of policing).
(c) The inquiries (if they work well, but
see further) will provide important insights into how policing
was done in the 80s and 90s and what worked well and what did
not. Society needs to retain the learning about good policing,
and ensure that that learning is translated into current policies
and practices, and it needs to determine what was bad policing,
and how that can be avoided in future. Post 7/7 in London, who
can say that it would not be widely beneficial to learn about
the pressures put on good policing at the height of the conflict
in Northern Ireland, and how can this be better countered in similar
situations in the future?
7. Thirdly, as noted above, CAJ believes
that there will be some very negative learning that arises from
these inquiries. Nevertheless, the advantage of that learning
is that it can be put to good effect and will ensure that it cannot
be repeated. Each time that the Chief Constable and the Policing
Board are able to assure themselves that "x" or "y"
could not happen now because of changed procedures, the more society
can be assured that we have indeed learnt the terrible lessons
of the past. We refer the Committee to pages 95-96 of our report
entitled War on Terror: lessons from Northern Ireland,
in which the Chief Constable of the PSNI makes this very point.
8. CAJ's fear is not that too much will
be learnt, and somehow overly burden current operational policing,
but rather that the Inquiries Act, and the recalcitrance of many
within the various criminal agencies, will hamper the search for
truth. Our concerns about the limitations placed on public inquiries
by the passage of the Inquiries Act are well known, and figure
in earlier NIAC reports. In this regard, we need do little more
than refer the Committee to the current Billy Wright Inquiry.
Any even cursory glance at the public statement issued by the
chair to that Inquiry about the inadequacy of police response
to their efforts should disturb NIAC members. The audit trail
highlights serious problems about police procedures and record-keeping
at the time of Billy Wright's murder, but also in the year 2007.
The Committee may indeed want to express concern about the public
expenditure involved in commissioning an external review by former
ACC Sam Kinkaid, but the real shame is in the fact that so little
was achieved by this review. What does this say about current
police commitment to the process of learning from the past?
9. We also note that of the four inquiries
underway (Bloody Sunday and three "Cory" inquiries),
media frequently comment on the enormous legal costs involved.
Interestingly, there is rarely a breakdown of costs as between
the legal costs for the family/families (ie the victims) as opposed
to the (multiple) teams representing the several different arms
of government. At the Wright Inquiry, for example, there is a
three member legal team (senior and junior counsel and solicitor)
representing the family, and then seven legal teams representing
the Northern Ireland Prison Service, the Prison Officer Association,
the Police Service of Northern Ireland, the Northern Ireland Office,
the Security Services, the Treasury Solicitor's Office and the
Crown Solicitor's Office.
10. CAJ has recently testified to the Eames/Bradley
panel and we confirmed that adversarial highly-legalistic remedies
are often far from ideal in getting to the truth that the family,
and society, needs. We have no brief for arguing that vast sums
of public monies should be spent in ways that result in obscuring
rather than revealing what happened. The European Convention/Human
Rights Act (and common decency) requires, however, that the families
have a remedy. The `Cory' families have campaigned tirelessly
to get answers to their questions, and they should be being supported
in their endeavours—instead constant obstacles are placed
in their way. The Northern Ireland Affairs Committee should exercise
caution in their eventual recommendations if they are not to imply
that these families do not deserve the full truth of what happened.
11. Given the concern about putting public
resources to best effect, the Committee might want to make the
following recommendations:
(i) The PSNI should establish mechanisms
to capture the learning that arises from the Inquiries regarding
past and current policing and how to ensure that regular reviews
of policing policies and practices are built in.
(ii) The PSNI should have legal advice and
lines of accountability that make a clear distinction between
its obligations towards employees (past and current) and its duties
as a public body required to uphold human rights of all the members
of the public with which the Service interacts.
(iii) The PSNI should review the legal advice
that led to them arguing recently in court that RIPA authorised
them to covertly bug legally privileged conversations between
lawyers and their clients (an issue that has read-across to recent
debates in Britain about MPs private meetings).
Committee on the Administration of Justice
February 2008
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