Written evidence from the Police Ombudsman
for Northern Ireland
SECTION 1
1. Introduction
1.1 The Police Ombudsman welcomes the invitation
to attend the Northern Ireland Affairs Committee on this important
inquiry.
1.2 This submission offers comment in relation
to the two specific areas of current concern as outlined in your
Terms of Reference and will not attempt to comment on the wider
aspects of your broad inquiry.
1.3 The Police Ombudsman (Mr Al Hutchinson)
took up his tenure of Office on 6 November 2007 and will hold
this Office for a fixed period of seven years from that date.
Mr Hutchinson, prior to November 2007, was the Oversight Commissioner
and prior to those duties had a career in the Royal Mounted Canadian
Police, retiring as an Assistant Commissioner.
1.4 The Chief Executive (Mr Sam Pollock)
has worked as the Senior Official and Accounting Officer since
April 2001 and prior to these duties has worked in Criminal Justice,
primarily in Northern Ireland, since 1972.
1.5 The Senior Director of Investigations
for the Office (Mr Jim Coupland) has only recently joined the
Office (January 2008), coming from 30-years service in Lothian
and Borders Police but more recently as Deputy Chief Constable
in the Civil Nuclear Constabulary
1.6 Context of Submission
1.7 The Office of the Police Ombudsman has
operated by Law since the 6 November 2000 and has become
a central feature in the new arrangements for the Governance,
Oversight and Support of Good Policing in Northern Ireland.
1.8 The strategic duty of the Police Ombudsman
is to secure an independent Police Complaints system that has
the confidence of the public and the police and is enabled to
do this under the duties and powers set out in the Police (Northern
Ireland) Act 1998 as amended by the Police (Northern Ireland)
Act 2000 and the Police (Northern Ireland) Act 2003 and by other
primary and secondary legislation
1.9 Complaints are investigated not only
against the Police Service of Northern Ireland (PSNI), but also
Larne and Belfast Harbour Police, the Belfast International Airport
Police, the Ministry of Defence Police, the Serious and Organised
Crime Agency (SOCA), and soon the Board and Immigration Agency
and Her Majesty's Revenue and Customs, when exercising law enforcement
powers in Northern Ireland.
1.10 The Vision of the organisation is to
provide "excellence in the provision of an independent, impartial
police complaints service in which the public and the police have
confidence".
1.11 The Office opened its doors in 2000,
and between November 2000 and 31 March 2007 we have received 20,597
complaints containing 30,283 allegations of police wrongdoing.
From 2001-02 to 2004-05 the number of complaints against the police
showed a steady decrease, however this pattern reversed in 2005-06
when the number began to rise. It appears that complaints this
current year (2007-08) have trended downward.
1.12 Mrs Nuala O'Loan (now Dame Nuala O'Loan
DBE) established and developed the working of the Office over
the first seven years and the Office is now recognised locally,
nationally and in many parts of the world as representing an excellent
mechanism for the independent, open, impartial and effective investigation
of complaints.
1.13 In July 2004, the Northern Ireland
Affairs Committee conducted an inquiry into the working of the
Office and published their Report in February 2005. The Report
provides a comprehensive review of the breadth and depth of the
contribution that the Office is making to the working of the complaints
system and impact in the context of Northern Ireland Policing
and Criminal Justice development. That Report provides primary
background material for assistance to this Committee.
1.14 In October 2007 a publication was released
by the Office of the Police Ombudsman outlining some key trends
and patterns in complaints and matters handled by the Office over
the seven year period and this Report is attached. It provides
general information about the working of the Office, changes and
development in complaints from the public and referrals from the
Chief Constable and others and also Police Ombudsman initiated
investigations over the past seven years.
1.15 The Police Ombudsman and the Accounting
Officer are required to lay before Parliament an Annual Report
and Statement of Accounts each year and do so in line with the
guidance and requirements of Parliament. The most recent Annual
Report, for the period ending 31 March 2007, was presented to
the Secretary of State as required by the 30 June 2007 and laid
in Parliament. This Report best represents the current performance
and activity within the Office and is attached in support of the
submission.
1.16 With regard to Part 2 of the Terms
of Reference, a number of Public Statements have been released
by the Office of the Police Ombudsman, which are specifically
relevant to the issues being examined. Attached for the information
of the Chairman.
SECTION 2
2. Terms of Reference—Part 1
2.1 The financial and operational consequences
for the Police Service of Northern Ireland, of servicing the various
`historic inquiries' into past events in Northern Ireland.
2.2 In 2001 the Ombudsman was given a statutory
obligation, via the RUC (Complaints) Regulations 2001, to investigate
grave or exceptional cases where the incident occurred more than
a year prior to a complaint being recorded and there is an allegation
of police misconduct. Matters to be investigated under this provision
arise from a number of areas—Chief Constable or other statutory
referrals, Police Ombudsman initiated investigations, public complaints.
The law requires investigation and that will continue to be the
case unless the law is changed.
2.3 In April 2004 the Prime Minister gave
a commitment to finding ways which Northern Ireland could deal
with its past and one such way approved by Government was the
need to examine unresolved deaths in Northern Ireland that were
related to the security situation during the period 1969 until
the signing of the Belfast Agreement. In March 2005 the Government
gave a commitment in providing additional funding to enable the
Chief Constable to expand the work of the Serious Crime Review
Team and funded the setting up of the Historical Enquiry Team.
This commitment extended to £24 million. Related support
work by the Forensic Science Agency and the Public Prosecution
Service is also being resourced by a further £8 million.
No provision was made at this stage for the costs of the additional
work which would inevitably fall to the Police Ombudsman.
2.4 The PSNI cannot investigate any matter
where the conduct of a member of the police force may have resulted
in a death. Section 55(2) Police (Northern Ireland) Act 1998 and
Section 55(3) state that the Police Ombudsman has to investigate
such a matter and cannot refer it back to the police. Attached
at Appendix A is an extract from a legal opinion provided to the
Director of Public Prosecutions (DPP) by Bernard McCloskey, QC
which concludes that the Police Ombudsman has exclusive jurisdiction
in such investigations (the part of the advice excluded contains
sensitive information alluding to a particular case giving rise
to the request for advice). In another part of that advice Mr
McCloskey concludes that the police would have no "investigative
competence" in such cases. The advice from Senior Treasury
Counsel to the DPP also confirms the legal position.
2.5 A meeting was held with the Chief Constable
on 26 September 2005 and the jurisdiction of the Police Ombudsman
was articulated. A protocol has been drawn up between the two
organisations and signed. The objectives the Police Ombudsman
agreed to were:
— to undertake a review and, where
necessary, an investigation into all matters stemming from the
work and remit of the HET which require to be dealt with by virtue
of Section 55(2) or Section 52;
— to provide independent and impartial
recommendations or closure on all relevant matters;
— to work and co-ordinate effectively
with the HET in those cases where parallel investigations are
required (where the incident involves both police and non-police
personnel); and
— to help build confidence in
the public domain that policy of Government as outlined in April
2004 is being taken forward with rigour and impartiality.
2.6 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. The work deriving from the operations of
the HET however, was, in many cases additional to the work which
had already been identified through public complaints etc. The
previous Police Ombudsman, in presenting the business case for
resources following the creation of the HET, placed on record
as early as January 2006 the serious concerns with regard to the
impact on resources, of enquiring into the past by this Office
as follows and said:
The Government initiative in relation to unresolved
murders is a strategic proposal with far reaching implications
for public confidence in policing;
The review and investigation of those matters
where death may have resulted from police conduct or action, or
where there has been or is suspected to be police failure of investigation
as a consequence of the work of HET, the review requires equally
effective but independent examination. It is of particular significance
to the resolution of allegations and accusations in relation to
past events;
The potential number of matters to be referred,
whether mandatory or discretionary, is of such proportion that
it requires a separate stand alone investigation team which will
have the substance and resilience to take on the scope and nature
of the work identified.
2.7 The Business Case in January 2006 presented
an outline of the structure of the proposed Team which was required,
and of the necessary expertise and resource that would underpin
it. The case represented an additional requirement of £750,000
per annum. If the work extended for the period of time parallel
with the HET, it would amount to £5 million over six years.
This Business Case was submitted to the Northern Ireland Office,
on 10 January 2006, through the Police Reform Division asking
for urgent consideration of the proposal in relation to requirements.
2.8 Government responded through the NIO
to the Business Case for resources. 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 2006-07 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.
2.9 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 £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.
2.10 Currently all investigations into historic
matters are dealt with either within the Sapphire Team which responds
directly to all HET referrals or within the Significant Investigations
Team which has focused on the significant and historical investigations
over the past six years.
2.11 The Police Ombudsman's Office has published
14 major reports which relate to "grave or exceptional"
issues from Northern Ireland's past. Examples as follows:
— October 2001: Finding
that the police never acknowledged to the family of a man who
died after he and his family were attacked by police in their
home in 1969, details of what happened that night. The information
revealed that a thorough investigation had taken place but the
truth had never been revealed;
— December 2001: Major
failings in the police investigation of bombing of Omagh;
— January 2004: The RUC
investigation of the murder of 61-year old man in 1997 was incomplete
and inadequate;
— October 2004: A report
indicating that the Police had conducted a thorough investigation
into the murder of a taxi driver murdered by Loyalists near Dungannon
in 1990;
— February 2005: No evidence
to support an allegation that a Newry man was murdered in 1990
at the instigation of police, but the police investigation of
the murder had significant failings and Special Branch withheld
information from the police officers investigating the murder;
— August 2006: Report issued
indicating that the abduction and murder of a mother by the IRA
in 1972 had not been investigated at the time, and that subsequently
an attempt to investigate had been ineffective;
— January 2007: Report
issued following a three year investigation of the murder of a
man in North Belfast raising serious concerns about collusion
and the criminal activity of sources along with significant failings
of the police to take effective action;
— Other high profile cases included
allegations relating to police conduct in relation to the murders
of a soldier, and a solicitor;
— There have also been a number
of other retrospective cases that have been dealt with in a quick
and low profile manner. Often these cases, on investigation proved
to have been properly dealt with apart from the fact that police
simply had not provided information to families.
2.12 There are currently 983 investigations
taking place in the Office and 116 of these could be described
as relating to matters of a historical nature. In the Significant
Investigations Team, 54 are matters of a historical nature representing
41% of all cases in that Team and at least 35% of all staffing
resource in this team is dedicated to historic cases. 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.
2.13 In the Sapphire Team, all cases relate
to historical matters, and so all staff resources and other costs
are dedicated to this function. With regard to the staffing resources
of the Office (£5.9 million), disregarding central support
costs, infrastructure, accommodation, and senior management costs),
at least 21% of all staffing costs are dedicated to work of a
historical nature. There is a specialised unit for the analysis
of information and 70% of the resources in this Unit are focused
on historical work. Therefore with regard to staff costs in relation
to this work against our total investigation staff cost, it is
in the region of 25%.
2.14 The level of experience of investigators
required for complex historical investigations has been significant.
For example, the Senior Investigating Officers (SIO), Deputy Senior
Investigating Officers (DSIO) and many of the investigators are
seconded Police Officers from England and Wales. More recently,
in the setting up of the Sapphire Team, the use of contracted
investigators (all retired Police Detectives) cost significantly
more than an investigator directly employed by the Office. A seconded
Police Officer costs the Office almost three times the cost of
a directly recruited investigator. A contracted investigator similarly
represents a cost of almost double that of a directly recruited
investigator. There is not available however a sufficient pool
of experienced non-police investigators to carry out this work.
2.15 The level of resources, the pressure
on the caseloads of normal day-to-day complaint investigation
as against historical investigation, and the necessary use of
current experienced police seconded officers, all represent pressures,
which currently cannot be avoided.
2.16 Historic case investigation involves
a number of stages. The initial scoping and research is to:
— ascertain whether the basis
of the complaint or matter is within the legislative remit of
the Office;
— ascertain whether there are
evidential lines of enquiry available; and
— prioritise the case against
the others that have been researched and prioritised.
2.17 All cases referred to the teams whether
by way of public complaint or by HET referral, are subject to
this review process. It is a 10 week review/scoping process, completed
cases are then brought forward to the Prioritisation and Tasking
Meeting where it is decided if cases will be pended, (put on a
waiting list) investigated or closed depending on the existing
priorities as identified.
2.18 The Investigation phase—if it
is considered appropriate to move to it involves:
— identifying lines of enquiry,
witnesses, forensic opportunities, police officers (suspects and/or
witnesses), family, relatives, and on occasion issues deriving
from linked enquiries;
— obtaining evidence from witnesses
where the incident may have occurred decades ago (in which cases
memory may have become deficient), from a police estate that has
not dealt well with retention of information material, and from
unwilling former police officers (inevitably these are key witnesses
or suspects);
— the issues arising in grave
or exceptional circumstances such as multiple deaths arising from
bombing atrocities;
— the identification, interpretation
and application of complex issues of policies and law, current
at the time of any particular incident;
— the identification of good practice
and policies that have evolved but did not exist 20 or 30 years
ago;
— analysis of pre-incident, incident
and post incident intelligence is required in nearly every case—this
is a skilled area of work, which must for security reasons be
restricted to a limited number of staff. These matters tend to
grow in demand and complexity as the investigation develops; and
— the consideration of life and
death decisions in the context of policing the most serious crimes,
with management and public policy issues forming the backcloth
to the work.
2.19 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 360° 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.
2.20 In the Significant Investigations Team,
there are 54 public complaints of a historic nature under investigation
at this time. 28 are currently in the reviewing/scoping process,
15 are active investigations, eight investigations are complete
and three are pended due to insufficient resources. Of the 28
under review/scoping, two have already been identified as potential
priority cases which will require a full investigation team under
an SIO, and of the 3 that are pended, two will require a full
investigation with separate teams of investigators.
2.21 In the Sapphire Team (historic enquiries)
there is a total of 16 public complaints currently under investigations
together with 46 HET referrals being dealt with by this Team.
One relates to the murder of a female in a loyalist club in 1987.
This case has been through the prioritisation process, and has
been approved for full investigation. However, due to its complexity
and possible links to at least five other murders, it has had
to be pended. Four other public complaints have also been totally
pended because of lack of resources.
2.22 Among the HET Referrals which have
already been received, there remains a large number of high profile
and complex matters, which will require significant resources
and investigation. These include referrals relating to matters
arising from previous enquiries such as Omagh. Another referral
relates to a hugely complex matter again involving linked murders.
Given our current numbers of investigations, our ability, to conduct
effective and efficient and timely investigations into these matters,
as required by Article 2 ECHR, has been significantly reduced.
2.23 Whilst every effort is made to explain
the process to the families, solicitors and other public representatives
at the outset, it is becoming more and more difficult to manage
expectations. 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.
2.24 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. There are not enough investigative
staff to deal with the workload of today and the past. There is
a real danger that we will review and scope, but not be able to
progress past that point in all cases, unless resources are diverted
from the work arising from current complaints. This is turn has
the potential to undermine both the police complaints system and
public confidence in the system and in policing today.
2.25 As the former Policing Oversight Commissioner,
the present Police Ombudsman, Al Hutchinson, reported in his June
2007 report, under Future Challenges—A Choice: Policing
the Past or Policing the Future? stated that:
"I am raising the issue of `policing the
past' from the singular perspective of policing the future of
Northern Ireland. I do believe that the Northern Ireland society
somehow has to find the proper architecture to deal with the past,
and learn from it. The past is a place no longer inhabited, except
with our imperfect memories. The future, for our children and
grandchildren, should be the destination of choice. I do not have
a magical solution or elixir, I wish I did. I do know that 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. While they are
simply doing what is required by mandate and law, they raise expectations
that cannot be met, and distract from the task of finding a societal
resolution to the past".
2.26 There has to be a proper and comprehensive
architecture to deal with the past, and learn from it. One part
of this could, for example, 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. A high threshold would have to be set; for example,
only where there is significant new evidence available, would
a matter be investigated. There are hundreds of cases currently
under review where there is no prospect or indication that a new
investigation would lead to a positive outcome. This would rationalise
the process and while disappointing the families, it would avoid
raising unrealistic expectations.
2.27 The establishment of such a single
independent investigative organisation would enable significant
savings to be made in the costs currently arising through the
running of the two separate organisations, which must of necessity
duplicate many tasks in the course of complying with the requirements
of the law as currently established. In the situation of the Police
Ombudsman, it would have the consequential result of focusing
back on our core function.
2.28 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.
SECTION 3
3. Terms of Reference
3.1 The effect on the ability of the Police
Service of Northern Ireland to bring accused persons to trial
of provision in The Inquiries Act 2005 and in other legislation
requiring the police to divulge information which might identify
a covert source.
3.2 It is recognised that this part of the
Terms of Reference focuses on the responsibility of the PSNI under
the Inquiries Act. However the current public enquiries overlap
with some of the complaints and current major investigations in
this Office. The powers of an Inquiry constituted under the Inquiries
Act are wide ranging and under Section 21, the Chairman may require
the production of any document or thing and compel the attendance
of any witness, to give evidence relating to any matter in question
at the Inquiry. Where "harm or damage" could occur,
the Chairman of the Inquiry or the relevant Minister may by order
or notice, restrict the disclosure or publication of any evidence
provided to the Inquiry. Thus, where the Chairman or the Minister
is sighted of potential difficulties which could arise, they may
of their own volition, restrict the disclosure or publication
of relevant evidence.
3.3 Even where it is not readily apparent
to an Inquiry, other individuals, better placed to realise the
risk, may invoke protection of the information or, more accurately
refuse to provide the information, in accordance with the provisions
of Sections 22 (1) & (2). Section 22 (1) specifically negates
compellability where to require it would be incompatible with
a European Convention obligation. Obviously the placing at risk
of a source by disclosure of their identity would infringe upon
Article 2 ECHR and would therefore be incompatible with the Convention
and this Office will hold to the principle of not confirming or
denying the identity of any source.
3.4 Additionally, Section 22 (2) preserves
a public interest "exemption", protecting that which
would attract a claim of Public Interest Immunity (PII) in any
other venue and therefore "copper fastens" the ability
of the PSNI, in such situations, to raise a defence to a production
order. Other organisations also have powers to compel the Chief
Constable to release to them documentation which could, if published,
disclose the identity of a source and compromise any subsequent
trial. This power vests in the Criminal Cases Review Commission,
amongst others, and in particular the Police Ombudsman under Section
66 of the Police (Northern Ireland) Act 2000. The Police Ombudsman
and others may therefore be in possession of information relevant
to the public inquiries, which would identify sources. That information
too must be protected, if there is to be compliance with the State's
obligations under Article 2 ECHR.
3.5 In order to fulfil the statutory duty
to investigate allegations of police criminality and/or misconduct,
it is vital that the Police Ombudsman continues to be in a position
to access all relevant evidence held by police. To fetter this
power would severely compromise the integrity of investigations,
hamper the ability to secure public and police confidence in the
police complaints system and negate the overarching requirement,
in appropriate cases, to conduct effective and efficient investigations
under Article 2 ECHR.
3.6 Where such information is disclosed
to the Office, it is managed within a secure unit with appropriate
safeguards in place. A careful assessment is made of how, and
in what circumstances, such information may be used, mindful always
of all Convention Rights that may be engaged. Where this Office
obtains details of source identity, there is no reason to suspect
that this may compromise any criminal trial, any more than a trial
resulting from a police investigation. Like the Chief Constable
the Police Ombudsman will investigate allegations of criminality
in order to provide the Director of Public Prosecutions with a
report and recommendation. The decision on whether or not to prosecute
remains with the Director and issues of what is required to be
disclosed to the defence under the Criminal Proceedings and Investigations
Act, rests ultimately with the Director.
3.7 The Police Ombudsman recognises that
the NIAC considers the impact of disclosure of any source identity,
on the future ability of the police to secure information from
sources. There are, of course, other effective and lawful technologies
and methodologies available to the police, which may be used in
the fight against terrorism and serious crime and which support
the rule of law. These include:
— The use of honest and paid agents
of the State to provide information and intelligence for the PSNI
to mount lawful surveillance in compliance with the Regulation
of Investigatory Powers Act, and to secure information and intelligence
to be used in investigation and operational processes to bring
criminals and terrorists to justice.
— The use of honest members of
the public, if necessary rewarding them for reliable information,
to help uncover and destabilise active terrorist and criminal
organisations.
— The provision of protected status
on grounds of public interest immunity for relevant evidence and
witnesses, to secure successful convictions.
— The impact on terrorist organisations,
of knowing that covert and intrusive surveillance is actually
used to undermine and frustrate their strategies.
— The impact of using such evidence,
properly protected and disclosed under authorised arrangements,
to achieve convictions and positive outcomes.
3.8 There is, regrettably, a legacy in Northern
Ireland of inappropriate and on occasions unlawful practice and
policy in the use of sources, and the information received from
them, which has, on occasion, prevented good policing, and has
undermined the rule of law and confidence in policing. Examples
of this are as follows:
— The use of multiple sources
in one illegal organisation, operated by different handlers, who
have not complied with the law or policy, or who have had no policy
guidance to follow and who have taken advantage of the opportunities
which this presented, to protect their sources and undermine policing.
— This Office notes with concern
an observation of the appropriate inspectorate that due to the
number of sources being handled in one place and in certain positions
within a terrorist organisation, the PSNI could have been accused
of controlling that organisation.
— The authorisation of criminals
and terrorists to engage in criminal activity which goes well
beyond that which is permitted in law and guidance. Some sources
have been engaged in the most serious of crimes and yet still
being paid by the police.
— The lack of records of authorisations
for sources to be involved in minor criminal activity.
— The corruption of processes
designed for detention for extended investigation purposes.
— The failure to inform Prosecutors
of information held by the police, or providing false information
to Prosecutors as highlighted in the Ballast inquiry.
— The significant impact on confidence
in the criminal justice process, deriving from the non-prosecution,
discontinuing or acquittal of persons during trials, due to the
inability to disclose either source identification or investigative
methodologies.
3.9 It is acknowledged that the PSNI following
their review of sources decommissioned many of them, half of them
because they were engaging in serious crime but the inherent dangers
of these practices and its impact on good policing cannot be underestimated.
3.10 The NIAC will be aware that compliance
with the current requirements under the Inquiries Act 2005 in
terms of disclosure may have the effect of negating the possibility
of future criminal proceedings, given the need to comply with
the requirements under Article 2 ECHR, not only to protect life,
but also to conduct independent, efficient and timely investigations
of all killings, however perpetuated, as well as other serious
allegations such as collusion.
3.11 Where the Police Ombudsman or the Chief
Constable, under their statutory obligations, seek to protect
methodologies or sources from being made public at an Inquiry,
this may have the effect of undermining confidence in these organisations.
SECTION 4
4. Summary
4.1 Policing practices of the past are influencing
perceptions of present day policing, and consequentially hindering
the forward progress of policing in Northern Ireland.
4.2 The Police Ombudsman believes that all
the pieces are in place to deliver the new beginning to policing
in Northern Ireland, but that the issues of the past have established
a barrier in the road to re-establishing the trust necessary for
fully achieving that goal.
4.3 The Police Ombudsman believes also that
the Historic Enquiries Team and his Office are blunt instruments
too narrowly focused to use in a search for truth and justice
for societal challenges. While these bodies are simply doing what
is required by mandate and law, they raise expectations that cannot
be met and distract from the task of finding societal resolution
to the past.
4.4 This submission highlights only briefly
the disproportionate weight of work and pressure on resources
which the Historic investigations create for the Office, we are
already struggling to cope with current commitments and with possibly
over 300 or more relevant matters still to be referred by HET,
we will move rapidly to a "tipping point" and the Office
would lose ground and confidence in a significant manner.
4.5 The early years of this Office has made
a huge contribution to demonstrating a strong and effective accountability
mechanism within the new policing arrangements, but the fundamental
priority for this Office should be to deal effectively and impartially
with current complaints against the PSNI and help continue improve
the practice and the confidence in PSNI as it seeks to serve communities
in a new phase of life in Northern Ireland.
4.6 No crime, most certainly no killing,
whatever the context, should ever be regarded as outside the law
or considered spent as long as there is a prospect or evidence
which might lead to the detection of that crime and no criminal
or terrorist or anyone giving support to criminals or terrorists
should ever be regarded as outside or above the law.
4.7 The Police Ombudsman did not say, nor
believe, that a line should be drawn under the past and it be
forgotten. Some matters should and could still be the subject
of investigation and the NIAC may consider the merits of a separate
body or investigative mechanism, outside the PSNI and the Police
Ombudsman which would be capable of investigating matters through
a sustainable process compliant with the UK obligations under
Article 2 ECHR.
4.8 For those current matters where there
are no realistic prospects or no new lines of inquiry or new evidence
then there does need to be other appropriate mechanisms for "truth
recovery" or the uplifting of information which will assist
victims families and communities to deal with the hurts and pain
of the past.
4.9 With regard to issues centring on covert
sources, there should be radical review and recommendations to
bring procedures and controls, in all agencies or policing units
into proper democratic accountability consistent with the rule
of law and a criminal justice process which covers all those committing
crime or terrorism.
Al Hutchinson
Police Ombudsman
Sam Pollock
Chief Executive
Jim Coupland
Senior Director of Investigation
14 February 2008
APPENDIX A
3. Does the Ombudsman,
by virtue of Section 55(2) of the Police (Northern Ireland) Act
1998 ("the 1998 Act"), have exclusive jurisdiction for
cases where death has resulted from the conduct of a police officer
so as to preclude the involvement of PSNI?
3.1 One recalls that the office of the Ombudsman
is statutory, having been created by Part VII of the 1998 Act.
I would highlight Section 51 (1), which provides that the Ombudsman
is established "for the purposes of this Part". Further,
Section 51 ( 4) makes clear that the two overarching statutory
purposes of establishing the office of Ombudsman in Northem Ireland
are (a) to secure "the efficiency, effectiveness and independence
of the police complaints system"; and (b) to secure "the
confidence of the public and of members of the police force in
that system". The word "independence" is obviously
noteworthy.
3.2 Per Section 52(1), all complaints about
members of the police force "shall" either be made directly
to the Ombudsman or shall be "referred immediately"
to the Ombudsman. Also to be noted in this context are the duties
imposed on the Chief Constable (and, hence, PSNI) to take steps
to preserve evidence. See Section 52(2) and (10). By Section 54(2),
the Ombudsman shall formally investigate every serious complaint
in accordance with Section 56. Where the complaint is other than
serious, the Ombudsman has the choice of formally investigating
the complaint under Section 56 or referring it to the Chief Constable
for formal investigation by a police officer in accordance with
Section 57. The very fact that Parliament has invested the Ombudsman
with this choice is striking, tending as it does to reinforce
the dominant and independent role of the Ombudsman in the sphere
of investigating possible serious offences committed by police
officers.
3.3 Section 55(2):
"The Chief Constable shall refer to the
Ombudsman any matter which appears to the Chief Constable to indicate
that conduct of a member of the police force may have resulted
in the death of some other person".
Section 55(3) provides that, in such a case,
the Ombudsman "... shall formally investigate the matter
in accordance with Section 56".
I have reflected on the question of whether
the statutory language "a member of the police force"
applies to a person who is not a current member, whether by retirement
or resignation or otherwise. On balance, I consider that the legislation
extends to such persons. This construction would be consistent
with the overarching statutory objects.
3.4 The question on which I am asked to
advise focuses attention on Section 55(2). I suggest that this
provision should not be considered in isolation, but in conjunction
with a series of other, related provisions, as outlined above.
In other words, it must be examined in its full statutory context.
The true meaning, ambit and implications of Section 55(2) are
clarified and infonned by, inter alia, Section 55(3) and Section
56 in its entirety. In this series of statutory provisions I can
identify no real ambiguity or anomaly. Their combined effect,
in my view, prompts an affirmative answer to the questions posed.
It follows that in the murder investigation
presently being conducted, the office of the Ombudsman has exclusive
jurisdiction.
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