Written evidence from the Northern Ireland
Retired Police Officers' Association
1. This submission is made to the House
of Commons Northern Ireland Affairs Select Committee by the Executive
Committee of the Northern Ireland Retired Police Officers' Association,
a social and welfare organisation representing the interests of
over 3,000 former members of the Royal Ulster Constabulary GC
and the Police Service of Northern Ireland.
2. The Association feels that it is uniquely
positioned to contribute to the deliberations of the Committee
as it seek to address the effect on the ability of the Police
Service of Northern Ireland (PSNI) to bring accused persons to
trial, of provisions in the Public Inquiries Act 2005 and in other
legislation requiring the police to divulge information which
might identify a Covert Human Intelligence Source (CHIS).
3. Amongst our members are former officers,
of all rank levels, who were directly engaged in the collection
of intelligence using CHIS and many former officers who benefited
from the intelligence that was collected. We believe that they
have a valuable knowledge, considerable experience and important
views on the matter under consideration by your committee.
POLICE USE
OF CHIS
4. The primary functions of any police service
are the protection of life and property, as well as the prevention
and detection of serious crime. An efficient intelligence gathering
system is essential in this regard. Intelligence properly gathered,
analysed and disseminated provides invaluable assistance in both
protecting life and investigating crime and, in many cases, will
enable action to be taken to prevent crimes occurring. When police
are lacking witnesses (which is often the case in Northern Ireland),
especially eyewitnesses, dealing with sophisticated terrorists
and criminals, or not getting much out of the crime scene evidence,
the use of CHIS becomes increasingly important as it can help
inform and direct the investigators.
5. The PSNI has a duty to gather information
and generate intelligence about crime, terrorists and criminals.
The ability to infiltrate criminal and terrorist organisations
is vital to understanding the way in which individual and organised
criminal enterprises work and to formulate strategies to thwart
and frustrate criminal and terrorist activity and bring those
responsible to justice. The practice of using CHIS is a well tried,
tested and productive method of gathering intelligence and it
is a technique that is employed by police throughout the world,
not just in Northern Ireland. Towards the end of the "Troubles"
in Northern Ireland, a former RUCGC Chief Constable is on record
as stating that four out of five planned terrorist attacks were
being disrupted. It is widely accepted in jurisdictions permitting
the use of CHIS that processes and procedures must be in place
to protect the identities of the CHIS.
THE CLOAK
OF ANONYMITY
6. One common feature shared by every CHIS
is a desire for their activities and identity to remain secret.
It has been our members' experience that during the recruitment
process potential CHIS need constant reassurance that their dealings
with the police will indeed remain secret and that only under
exceptional circumstances, such as a legal requirement, will their
identity be revealed to anyone outside the small team that is
working with them and their managers. This is an issue that recurs
constantly throughout the life of the relationship with the CHIS
and they need continual reassurance on this issue. Without such
reassurance very few people, if any, would actually agree to provide
secret intelligence to the police.
7. Everyone in Northern Ireland knows well
and understands the penalties that the terrorist and organised
crime groups inflict on those whom they believe to be CHIS. The
ultimate sanction of death awaits those who fall under the terrorists'
suspicion and the murders of individuals such as Dennis Donaldson
and Eamon Collins, both allegedly CHIS, have been well publicised
and helped to reinforce this perception. It is by offering such
a fate that the terrorists seek to maintain a grip on the security
of their organisation and to reassure their own membership that
they won't be betrayed. Indeed the IRA's "Green Book",
its training and induction manual, which acts as a manual of conduct,
states clearly that the penalty for informing is death. In Ireland
(as in some other jurisdictions) this sanction is reinforced with
a deliberately cultivated community attitude towards informers.
8. Death is often marked with ritual humiliation
and the families of informers are obliged to listen to "confessions"
and to distance themselves from their loved ones. Faced with the
prospect of such a death if their relationship with the police
becomes known no CHIS will operate without the belief that they
will be protected by a cloak of anonymity, which they see as vital
to their safety.
MOTIVATIONS
9. In recent years, due a small number of
highly controversial cases involving the publication of some misleading
material, the common perception of CHIS is that they are manipulative,
self serving criminals, only out for their own benefit. Whilst
this does apply to some individuals, it does not do justice to
the reality that Human Intelligence Sources can be made up of
very different people, motivated by very different reasons. Some
CHIS will indeed be motivated by self-interest, some by financial
reward; others however will be motivated by more noble reasons,
such as a desire to save lives and to protect their community
from the evils of paramilitarism. This type of CHIS willingly
puts their life on the line and takes extraordinary risks as they
seek to gather and pass on intelligence which saves lives. They
often show a moral courage and indeed a physical bravery that
is not widely seen or recognised. All they seek in return is the
satisfaction of knowing the valuable contribution to saving lives
which they have made and the reassurance that their activities
and identity will remain secret. It is the Association's opinion
that there is a major moral duty on the State, on public inquiries
and on the courts to protect the identities of such CHIS.
THE IMPACT
OF THE
EUROPEAN CONVENTION
ON HUMAN
RIGHTS
10. The Human Rights Act was enacted in
November 1998. It incorporates the European Convention on Human
Rights (ECHR) into domestic law and places consideration of an
individual's rights to privacy and fair trial at the very heart
of law enforcement operations. Many people only view Human Rights
in relation to the use of CHIS and their intelligence gathering
activities as it impacts on Article 8 the right to privacy and
Article 6 the right to a fair trial. It is our opinion that CHIS
also have the right to protection under Article 2 the right to
life and under Article 8 the right to privacy and family life.
If the identities of CHIS are not adequately protected it is only
a matter of time before some of these issue will be subject to
legal test in court.
DUTY OF
CARE
11. It is recognised that the police service
has a duty of care in relation to the management of intelligence,
the protection of sources and towards people who provide them
with information in confidence. Where, through neglect or a deliberate
act, harm results from a failure to honour confidentiality a sustainable
claim for damages may arise. In the circumstances in which informants
are handled the agreement to respect confidentiality is explicit.
The case of Swinney v Chief Constable of Northumberland
(1999) is the most relevant judgement in this area. Equally, a
failure to act to protect an informant who is known to be in danger,
presents the possibility of a similar breach of a duty of care.
The ECHR related case of Osman v UK (1998) indicates that
where police know or ought to know of a real and immediate threat
of harm to someone and fail to respond, an actionable breach of
a duty of care may arise.
12. One way the police can best exercise
its duty of care towards CHIS is by protecting their identities.
If a CHIS identity is revealed and they are then subject to a
threat of violence the usual response has been to offer that CHIS
a resettlement package. This package will include the offer of
a new identity and relocation to another part of the world. Accepting
such a package may save the life of the CHIS, but it can have
a devastating affect on their family and personal life. Imagine
having to leave your friends and family behind as you move to
start a new life in some part of the world you know little about.
Our members can relate many stories of discussions with resettled
CHIS who want to return home for the funeral of a parent or who
want to return to see an elderly parent for one last time before
they die.
13. The threat against resettled CHIS continues
to exist, if not from a terrorist organisation then from individuals,
some of whom may have served prison sentences because of intelligence
supplied by the CHIS. It is our Association's opinion that the
resettlement of CHIS should only occur in the most extreme circumstances
when a real threat to the life of a CHIS exists. It is not something
that should have to occur because of the system's failure to protect
the identity of the CHIS or to fully realise the impact that revealing
their identities can have on the CHIS, their family and life.
TRADECRAFT AND
OPERATIONAL SECURITY
14. "Tradecraft", the art of safely
using informants, is a key feature of nationally accredited CHIS
training courses for handlers, controllers and managers. Police
services worldwide spend considerable time and money ensuring
that officers are trained in tradecraft and best operational security
practices for CHIS operations. At the heart of this training lies
methodology to protect the identity of CHIS. The benefits of such
training and financial expenditure are significantly diminished
if other parts of the criminal justice system are not offering
the same levels of protection to the identity of CHIS. The Association
is strongly of the view that a holistic approach to protecting
the identity of CHIS needs to be adopted and that decisions to
disclose identities should not be made in isolation by other parts
of the criminal justice system not directly involved with the
fallout from such decisions.
FURTHER CONCERNS
15. The Association is extremely concerned
that knowledge about the identities of a number of CHIS is now
more widespread than traditionally would have been the case. Due
to the number of public inquires taking place and continuing investigations
by the Police Ombudsman and Historical Enquires Team, the PSNI
has had to share a lot of information on the identities of its
CHIS and has in effect lost control of the protection of such
information.
16. This is also the case with other investigations
such as the prolonged investigations by Lord Stevens, the status
of which remains a mystery to us. Files with recommendations have
been submitted to the Director of Public Prosecutions who has
directed no prosecutions against any police officer. Yet some
form of investigation seems to continue and a large number of
files containing the identities of CHIS remain in his possession,
a matter now attracting media attention and associated dangers.
17. There is the associated complication
of the previous Police Ombudsman publishing "commentaries"
on cases, allegedly involving CHIS, where "No Prosecution"
had been directed by the Public Prosecution Service. This in itself
can lead to (and probably has) the identification of CHIS through
a process of elimination and interrogation by terrorist godfathers.
18. Each of these inquires and investigations
has its own staff and administrative support: they are subject
to the normal employment practices and people will come and go,
on promotion and through movement to other jobs, each taking with
them some knowledge gained during their time with the inquiry
or investigation. A serious concern must be that there is an ever
widening pool of knowledge about the identities of CHIS, some
of whom are still in place and continue to provide valuable intelligence.
Each of the inquiries and investigations has their own premises,
with a resultant geographical spread, and each has their own security
measures. No longer are the identities of CHIS held in one central
location which is under the control of PSNI and which is subject
to very high security.
19. The Association feels that this is a
disaster waiting to happen and that it may only be after some
serious lapse of security or indiscretion by a former employee,
when a CHIS is compromised, that someone will look at this issue
and wonder how it was ever allowed to happen. There is significant
potential for immediate and very serious consequences of any "loss
of data" in this particular area of public life. High on
this scale would be the resultant threat to existing and particularly
retired handlers.
20. It is our recommendation that this situation
should be investigated now and the Committee should not wait for
some adverse event to be the catalyst for such an investigation.
Can anyone currently say who exactly knows the identity of a particular
CHIS? An area once so keenly and professionally protected by RUCGC/PSNI
is now an area over which they have little control. The golden
rule always was "need to know" not "want to know".
It is now an almost weekly occurrence to read Press articles about
individuals being alleged CHIS. It goes without saying that the
injudicious use of any intelligence material can have fatal consequences,
particularly relating to terrorism in Northern Ireland.
21. Our Association sees real dangers in
the current situation and believe it has an impact on both the
current intelligence gathering operations and on the potential
for the recruitment of CHIS in the future. A real concern is that
there is emerging a situation where the police will not be able
to retain the CHIS they currently have and that they will not
be able to recruit any CHIS in the future. We would ask, who in
their right mind would risk their life to supply intelligence
with no guarantee that their activities and identity will be protected?
The use of CHIS as an effective intelligence gathering technique
will end if steps are not take to ensure that adequate guarantees
can be given to present and potential CHIS.
CONCLUSION
22. The Association would remind the Committee
that the police service paid a heavy price in the discharge of
its duties in Northern Ireland with some 302 officers killed and
a further 10,000 injured, of whom 300 are maimed for life: and
1,183 police officers and their families were forced to leave
their homes and live elsewhere. Many former officers are still
in receipt of psychological counselling as they struggle to re-establish
themselves within their family circles and in the wider community.
It is our earnest belief that the use of Covert Human Intelligence
Source prevented many more from being murdered and injured and
indeed many of our members can testify to the personal benefits
to be had from timely and actioned intelligence received from
Covert Human Intelligence Sources. Consequently we are keen to
ensure that the use of Human Intelligence Sources as a technique
remains a potent and powerful tool for PSNI.
23. It is further our belief that the compromise
of individual CHIS and, by implication, of the system itself,
will damage the chances of the broader intelligence community,
including the Security Service and mainland police services, of
being able to defend the United Kingdom from the terrorist and
organised crime threats which now confront us. It would be for
others to say definitively, but we would also have concerns that
other UK agencies would find their cooperative relationships with
friendly overseas agencies jeopardised if it were thought that
the UK was indifferent to the protection of its intelligence assets.
24. Whilst our submission is succinct it
is nevertheless important. Our members feel strongly that if action
is not taken to ensure that the identities of CHIS are protected,
the ability of the PSNI to benefit from the use of Covert Human
Intelligence Sources in combating crime and terrorism will be
seriously and adversely affected. We, more than many groups in
society, know what will be lost to law enforcement and the possible
price that could be paid if such a situation arises. As an Association
we would urge the Select Committee strongly to do what it can
to ensure that this does not happen.
Northern Ireland Retired Police Officers' Association
21 January 2008
| 
