Supplementary evidence from the Police
Service of Northern Ireland
Further to evidence previously given regarding
policing the past and in particular the impact of public inquiries,
I detail below some legislative issues of concern and some suggestions,
which may go some to address these. The issues are based on our
experience as an organisation seeking to openly assist the various
public inquiries while at the same time maintain our other statutory
obligations in respect of certain information.
I have set this out in the attached paper under
six broad headings namely:
— Intelligence & Risk Management
— Covert Human intelligence Sources
(CMS)
— Immunity Retention of Documents
I trust this is of some assistance to the Committee
and as always if I can be of further assistance please do not
hesitate to contact me.
OBSERVATIONS ON LEGISLATIVE FRAMEWORK OF
PUBLIC INQUIRIES
INTELLIGENCE—RISK
MANAGEMENT
Risk management in the matter of intelligence
is directed toward the protection of knowledge, sources (both
human and technical) and information. The purpose of this protection
is twofold: firstly, the protection of the Article 2 (right to
life) rights of the sources, individuals providing assistance
and personnel; and secondly, the duty to protect ongoing operational
capacity and effectiveness. Operational effectiveness must be
maintained in order to discharge the police function of providing
protection to the community and ensuring the wellbeing of members
of those communities which includes members of the police service
and CHIS. Operational effectiveness, and to some extent Article
2, may be protected through Public Interest Immunity (PII) procedures.
Risk is also managed by maintaining coherent operational procedures,
protections and processes designed in legislation and policy to
protect intelligence from disclosure. The material will be classified
and treated in accordance with a scheme of classification that
is based upon the anticipated threat and risk to life, and to
state interests, that may be caused by disclosure.
PII
It has been determined, after much debate between
organisations holding intelligence, and, after consultation with
experienced counsel both in Northern Ireland and England, and
with the example of coronial case law that very little, if any,
PII exists between the Inquiry Chairman and the holding agency.
The Inquiry Chairman has a broad entitlement to have sight of
all information. The question remains open as to whether and how
far PH may extend to protect information from those staffing the
inquiry. Practically speaking, in matters of the size and complexity
of the present inquiries, the panel and the Chair do not, and
could not be realistically expected to do their own research.
The inquiry staff are large in number. There is therefore some
difficulty in defining the extent to which PII exists in this
respect, ie material which may be disclosable to the panel may
not be susceptible to broader disclosure. A balance between the
pragmatics of inquiry work and PII concerns about the extent of
disclosure and handling must be struck. This is a factor the PSNI
has tried to negotiate with the inquiries, principally by may
of a Memorandum of Understanding. Perhaps understandably the inquiries
have not found this attractive as they require to visibly maintain
their independence and entering into a such an agreement, which
may be perceived as potentially fettering their independence.
There has also been some debate as to the capacity
of Chairmen to award PII. The prevailing opinion is that Chairmen
can do this—but it would be helpful to have this fact spelled
out directly. Most of these issues have been resolved by negotiation
at this stage, but the process upon failure to agree in the matter
of PII would benefit from clarification and thereby reduce uncertainty
for all concerned. This standing of a need for a PII certificate
should be clarified.
Information Management Policy and Procedure
The prime way to keep intelligence safe is to
keep the circle of knowledge as narrow as possible. This is the
underlying rationale of the STRAP (government intelligence handling
regime) approach to management of intelligence. This process is
based upon the concept of need to know and is the prime way the
Security Service and MOD among others manages their information.
The exigencies of police work have meant that the STRAP process
is not practicable in policing, as the basis of STRAP is a rigid
codification of those who may handle the information which would
impede policing through its rigidity, however, the concept of
"need to know" governs information management. Procedures
are to a large extent designed to respect this principle. Police
officers who fail to respect this need-to-know principle expose
themselves to enquiry and possibly criminal or disciplinary processes.
These disciplinary processes are part of the framework of safeguards
in which agencies utilising intelligence such as the police, the
Security Service and MOD operate. Such a framework does not we
believe extend to the Inquiries but who are now in possession
of a very significant volume of intelligence. Indeed, we are unaware
of whether inquiry staff have been required to sign an undertaking
in keeping with the Official Secrets Act, but would suggest that
they should be so required.
Risk goes up exponentially as control of the
intelligence diminishes- this includes Article 2 risks. Worryingly
the Service cannot delegate its Article 2 responsibilities as
a public authority (s. 6 Human Rights Act 1998). Thus the Service
retains these onerous obligations in respect of the significant
volume of relevant intelligence that is now out with its influence
or control, having been handed over to enable the Inquiries to
undertake their work. The Wright and Nelson Inquiries (the principal
inquires utilising large amounts of intelligence) have declined
to document who will handle this sensitive information or provide
assurances as to how it will be used, managed, handled and stored.
We have approached them for these assurances however the best
we have achieved is to have their facilities and processes inspected
by relevant staff of the Security Service and some personal commitments
from certain staff. Nor have the inquiries been amenable to any
agreement whereby this information will be provided to the PSNI
so that risk registers may be adjusted to adequately reflect the
wider circle of knowledge. What is clear, is the inquiries have
neither the facilities nor the resources to undertake risk management-
nor do they have the full ambit of knowledge to be able to do
a complete assessment. We are aware of two occasions where laptops
have been lost and the result is the risk is presently unascertainable
and unmanaged. This is somewhat ironic given the lengths that
we as an organisation go to protect information and manage risk.
As alluded to above, the Inquiries have now
availed themselves of the Government Manual of Protective Security
guidance and advice, to which they came latterly after much correspondence
detailing the risks and the concerns. Throughout the upgrades
undertaken by inquiries in response to the requirements of the
Manual the Nelson and Wright inquiries continued to protest at
restrictions we applied to intelligence and secure storage of
same. This was stressful for the PSNI in the sense that the Service
has been sensitive to the damage that allegations of lack of co-operation
with the inquiries could have on its reputation and the confidence
of the public and the communities it serves but at the same time
had to articulate these concerns.
There is a definite tension created by the holding
of a public inquiry into what are essentially matters that are
secret. In the case of a criminal trial the state always has the
uncomfortable option of withdrawing the proceedings where it is
determined that the detrimental effects of revelation or disclosure
would outweigh the laudatory effects of a prosecution. So whilst
this is not a comfortable decision it leaves the holder of the
intelligence with the discretion to consider whether in fact even
having the argument is a worthy risk. Sometimes even the existence
of an argument reveals the fact there is something to argue about
which in turn provides a clue as to the scope and nature of information
that may be held. These arguments also run the risk of shaking
public confidence at a time when Northern Irish society is still
somewhat fragile. These are not purely legal concerns but are
also public policy concerns. This option to withdraw is not available
in a public inquiry.
Oversight
The Inquiries are not subject to the oversight
bodies the agencies such as the PSNI are subject to. These oversight
bodies monitor, among other things, how information is stored,
managed, collected and disseminated. In the case of the Police
Service of Northern Ireland, the scrutiny given to the management
of information, combined with the experience of other organisations,
has resulted in experienced personnel being put into place to
manage systems and information. The material itself is held in
secure facilities on grounds to which the access is closely monitored.
The Service is subject to regular audits, in particular in this
context, by the Office of the Surveillance Commissioner. The PSNI
is also always in dialogue with ACPO and other partners, including
international partners, about how to improve its practises and
procedures. The training, checks, balances, knowledge of the full
picture in the matter of risks and ongoing awareness and dialogue
is not available to the inquiry- and there has been no legislative
effort to include them or address these fundamental concerns.
When security has been breached, for example the break in to Castlereagh
police station, there has been a huge cost to the public purse-
never mind to the wellbeing and peace of mind to the persons affected
and their families.
Our position is that the inquiries do not have
the policies and procedures available to them and nor are they
themselves subject to independent scrutiny with regard to their
safekeeping of sensitive and critical information information
for which this Service has liability for. I will be frank in stating
that the political pressure on the PSNI not to be seen to cause
a rift with any inquiry in face of questions about collusion has
made querying the state of inquiry security all the more stressful.
This stress is caused by the lack of clarity as to responsibilities
and liabilities the once the documents are handed over. Legal
opinion in the matter of Article 2 is clear that currently the
PSNI has a duty to satisfy itself that material is not being handed
over to insecure holdings. Accountability must rest somewhere
and if not with the originating body- then somewhere. Assurances
in this regard would ease disclosure of relevant material.
That legislation convening inquiries be amended
to assign authority, responsibility and accountability to the
Inquiries, no matter which Act the inquiry is convened under,
in the matter of secure handling, management and storage policies
and procedures. This could be achieved by a mandatory Memorandum
of Understanding.
That where Inquiries hold information which is
subject to scrutiny by an oversight body in the setting of the
providing agency, then that oversight body's scrutiny will extend
into the inquiry. It may well be that the Cabinet Office or another
body accepts responsibility for this- but right now this is operating
on good faith and a promise.
That in convening these inquiries consideration
be given to requiring the personnel involved to undertake responsibility
and to be bound in the matter of the Official Secrets Act.
COVERT HUMAN
INTELLIGENCE SOURCES
(CHIS)
Any inquiry into what the intelligence holder
knew or knows at a relevant time leads to the CHIS. The PSNI is
dependant upon CHIS to fulfil its obligations in criminal investigations
and, in the past, on security issues. Many of these CHIS operate
at great risk to themselves and to their families and associates.
There is a long history of punishment of informers—and this
is not unique to Northern Ireland. CHIS may be criminals or associates
or they may simply be ordinary people who have "access".
They are motivated by everything from money, revenge and adventure
to altruism, community spirit and fear for the future. But each
one supplies information with the promise of confidentiality.
Information about CHIS may be important to the investigation by
the inquiries but the fact of being an informant poses special
risks for both law enforcement and the CHIS personally (Article
2 and Article 8). CHIS and their families, CHIS handlers and associates
are all at risk of harm- this is a well-documented fact. Notably
the same concerns outlined above with regard to handling apply.
Further, again, to the extent that information is relevant to
the inquiries detail identifying the CHIS may well be the subject
of disclosure.
Restriction orders, under the Inquiries Act
2005, are one way of managing the security of the information.
PII is another, or some combination of the two. It has not been
clearly spelled out whether a Chairman may deal with the question
of a PII certificate, but the prevailing view, albeit not shared
by Lord McLean, is that he can. Further it has not been made clear
in what order of precedence, a decision of the Minister or the
Chair in this regard may be sought and which is appropriate at
what stage of the proceedings or in what circumstance.
When personal details of the informant have
been provided to the Inquiry-there is no mechanism by which the
agency holding responsibility for the informant under the Regulation
of Investigatory Powers Act 2000 (RIPA) is required to be advised
of the use, dissemination, storage, or publication internally
at the Inquiry or otherwise of these details. RIPA at section
29 (5) codifies and details certain responsibilities in respect
to CHIS. These responsibilities are essentially operational responsibilities
conceived in the context of the use of CHIS for law enforcement
and/or security service reasons (the purposes meant by "for
the purposes of this part" below). Therefore these sections
do not extend to other uses- for example to inquiries. RIPA addresses
these issues for the Security Service and police services but
it has never been amended to extend to inquiries.
RIPA
s. 29(5) For the purposes of this Part there
are arrangements for the source's case that satisfy the requirements
of this subsection if such arrangements are in force as are necessary
for ensuring:
(a) that there will at all times be a person
holding an office, rank or position with the relevant investigating
authority who will have day-to-day responsibility for dealing
with the source on behalf of that authority, and for the source's
security and welfare;
(b) that there will at all times be another
person holding an office, rank or position with the relevant investigating
authority who will have general oversight of the use made of the
source;
(c) that there will at all times be a person
holding an office, rank or position with the relevant investigating
authority who will have responsibility for maintaining a record
of the use made of the source; d) that the records relating to
the source that are maintained by the relevant investigating authority
will always contain particulars of all such matters (if any) as
may be specified for the purposes of this paragraph in regulations
made by the Secretary of State; and (e) that records maintained
by the relevant investigating authority that disclose the identity
of the source will not be available to persons except to the extent
that there is a need for access to them to be made available to
those persons.
That the serious risks raised by the unclear
state of affairs be addressed through amendments to RIPA- and
such amendments extend to all inquiries potentially dealing with
sensitive information-including but not limited to the Inquiries
Act 2005. It is suggested the government has responsibilities
under the Human Rights Act 1998 and the Convention to address
these risks. There are serious concerns regarding the lack of
clarity in this area. The Inquiries do not have the be of policy,
process and rules in the matter of accountability. Lack of clarity
has in the past led to unacceptable risks to CHIS and their handlers
and to problems for the police service and other organizations
and has led to sweeping changes in the way these resources are
managed and held.
Again that an inquiry's use, storage and dissemination
of this information be subject to the oversight of an independent
body. The originating agency, often an interested party, has no
way of knowing what use this information may be put to once it
is released to the inquiry. Further, it does not have the power
to impose caveats on the use, storage or dissemination of this
material. The originating agency is also reactive and so if not
alerted to the use of this information is not in a position to
take preventative action. Preventative legal action is also time
consuming and stressful to relations, therefore a clear practice
or procedure in this regard would greatly assist.
INTERCEPT (IOCA-RIPA
PART I)
The problem is straightforward. As regards intercept
material, RIPA has been amended for the Inquiries Act 2005 but
not for other inquiries. The interpretation accepted by interested
parties is that the Nelson Inquiry is not governed by RIPA. The
result is that under the Inquiries Act 2005 disclosure must be
made to the panel alone, but in respect of other Acts is silent.
Opinion has been sought in face of the silence but this opinion
suggests the restrictions that apply in Wright and Hamill (requirement
to make a finding and disclosure to panel alone) do not apply
in the matter of Nelson. This creates a public policy concern
suggesting amenability to prosecution in the one setting but not
the other.
Section 17 of RIPA (as amended by Schedule 2
of the Inquiries Act 2005) states that:
17(1) Subject to section 18, no evidence
shall be adduced, question asked, assertion or disclosure made
or other thing done in, for the purposes of or in connection with
any legal proceedings or Inquiries Act Proceedings which (in any
manner):
(a) discloses, in circumstances from which
its origin in anything falling within subsection (2) may be inferred,
any of the contents of an intercepted communication or any related
communications data; or
(b) tends (apart from any such disclosure)
to suggest that anything falling within subsection (2) has or
may have or be going to occur.
(2) The following fall within this subsection:
(c) the issue of an interception warrant
or of a warrant under the Interception of Communications Act 1985;
(d) the making of an application by any person
for an interception warrant or a warrant under that Act;
(e) the imposition of any requirement on
any person to provide assistance in giving effect to an interception
warrant.
(4) In this Section an "intercepted
communication" means any communications intercepted in the
course of its transmission by means of a postal service or telecommunication
system.
In this section "Inquiries Act Proceedings"
means proceedings of an Inquiry under the Inquiries Act 2005.
Section 81 of RIPA defines "legal proceeding"
as "means civil or criminal proceedings in or before any
court or tribunal". There is an opinion from experienced
counsel to Treasury Solicitors that an inquiry is not a legal
proceeding within the meaning of the Act therefore as the Act
is specific with regard to inquiries convened under the Inquiries
Act 2005 and silent under the Police Northern Ireland Act, disclosure
may be made to the Nelson Inquiry without the strictures contemplated
under the Inquiries Act 2005. The amendments to RIPA for the Inquiries
Act 2005 have been carefully balanced to account for Article 8
(Privacy) and other considerations (including PII) that this sort
of product gives rise to, and the public interest in the inquiries
accessing same, but there is a silence in the matter of other
inquiries under other Acts.
The Inquiries Act 2005 is the Act by which the
Hamill and Wright Inquiries are constituted. They may have access
to Part I information under RIPA by virtue of Schedule 2 of the
Inquiries Act 2005 that amends RIPA and in accordance with those
provisions. Section 17 of RIPA is amended such that when the panel
makes certain findings concerning the product, intercepted communications,
from Part I of the Act may be disclosed to them. In this context
as stated in the last note RIPA applies to any warrants issued
under the Interception of Communications Act 1985 (s. 17(2)(c),
(d), and (e)). Section 18 serves as the exception to section 17
where it states:
(1) Section 17(1) shall not apply in relation
to:
(7) Nothing in section 17(1) shall prohibit
any such disclosure of any information that continues to be available
for disclosure as is confined to:
(c) disclosure to the panel of an inquiry
held under the Inquiries Act 2005 in the course of which the panel
has ordered the disclosure to be made to the panel alone.
8(A) the panel of inquiry shall not
order a disclosure under subsection (c) except where it is satisfied
that the exceptional circumstances of the case make the disclosure
essential to enable the inquiry to fulfil its terms of reference.
That the provisions relative to inquiries and
Part I of RIPA be reviewed as the current situation is contradictory.
IMMUNITY
All three inquiries have provided some reference
to the provision of immunity in respect to evidence provided to
an inquiry that might tend to implicate a person in an offence
or disclose and offence. Each of these inquiries involves the
investigation of the facts of serious criminality and the interview
of those who may be or are directly involved and who may either
hold information or provide information implicating themselves
and others. Interviewers must be prepared to address these public
policy considerations and will be witness to these disclosures
where the disclosures take place in interviews leading up to hearings.
The voluntary basis of the evidence is also adversely affected
by the power of compulsion under the legislation, and so the admissibility
of this evidence, even where there is no immunity, is also adversely
affected. There are very serious public policy considerations
around the granting of immunity in return for valuable evidence.
By way of example this issue has been addressed in the Serious
Organized Crime and Police Act at Chapter 2, sections 71-74.
That the provisions of inquiries legislation
be amended to address and reflect the public policy and human
rights considerations involved in issues of criminality and testimony
or evidence provided to an inquiry. One possibility is to incorporate
the above-named SOCAP legislation by way of amendment.
RETENTION OF
DOCUMENTS
The Inquiries Act and the rules of procedure
are silent as to two matters of interest to the PSNI in light
of the number of restricted documents provided to the Inquiries
in response to their demands. The PSNI would like to see documents
the Inquiry determines are not going used for the production of
core bundles returned to the interested party who owns them. This
is a determination that could be made at any stage by the Inquiry
before the close of proceedings. The PSNI would. also like to
see all the un-redacted documents, to which PH and Article 2 obligations
of care still exist, returned once the Inquiry is closed and the
Report is issued. The PSNI would be satisfied to see documents
to which no PH attaches, in other words redacted documents, be
archived as required.
The Act provides, at s. 41, that the Lord Chancellor
may make rules, and in the case of Scottish and NI inquiries there
are other "appropriate authorities":
(1) The appropriate authority may make rules
dealing with:
(a) matters of evidence and procedure in
relation to inquiries;
(b) the return or keeping, after the end
of an inquiry, of documents given to or created by the inquiry;
(3) The appropriate authority is:
(a) the Lord Chancellor, as regards inquiries
for which a United Kingdom Minister is responsible.
The PSNI would like to see the rules, and where
the inquiry is not under the Inquiries Act 2005, the related regulations
or legislation, amended to provide for the return of unused and
sensitive material at the close of the inquiry, or for a procedural
hearing whereby these matters can be discussed. The concern is
longterm security and control of the documents- this concern encompasses
Article 2 concerns for sources and other persons who may be implicated
in their contents. It is submitted that particularly in the case
of unused material- there is very little public interest in the
retention of same and that the security and Article 2 concerns
far outweigh any interest in its retention. With regard to unredacted
material the concerns are the same. Either provision needs be
made for the return of the same, or that provision be made explicitly
for their longterm storage and safekeeping so responsibilities
and liabilities are made clear.
COSTS
Common to the inquiries is the broad reach of
their terms of reference. The inquiries concern historical events
of at least a decade ago. It has been said that it takes about
a decade to replace a generation of officers in the military.
In the Police Service of Northern Ireland this process has been
accelerated by the implementation of Patten, resulting in the
retirement of more than a generation of the leadership possessing
the corporate memory. Inquiries, as they investigate and develop
their theories go through a period where the net cast by their
search becomes wider and wider until they are possessed of sufficient
information to be able to begin to narrow down the focus of their
search. In no instance was the likely size of the response scoped
or planned for, necessitating a constant expansion of specialised
and contracted personnel to respond to the demand and a moving
target in terms of cost and planning. The specialist services
required and the corporate memory have had to be purchased at
some considerable expense utilising finding that would otherwise
be devoted to core policing.
Notably there are extensive sections in both
the rules and the Inquiries Act 2005 dealing with the cost of
the inquiry itself. These provisions do not address the public
purse costs to core participants- most of whom are government
agencies and departments. Certain of the Inquiry's costs are offset
by the assistance these agencies provide in the form of office
space, storage, copying, production of materials in summary form,
analysis of material and so on. The rules and the statute then
have not addressed the full real costs of an inquiry. A timely
response is also expensive because it requires immediate increases
in resources, often specialised, to meet demands.
That a provision be made in the Act for a scoping
exercise as part of the Inquiry process which could then inform
a re-focussing of the terms of reference and so limit the possibility
of "mission creep" and allow interested parties to plan
how to respond to inquiry demands more fully. Every day the Service
makes choices in the allocation of physical resources and manpower
between responding to the past and dealing with present day policing
and in line with the reduced needs of a peaceful society those
resources are being reduced- but due regard for the past would
suggest more consideration of the costs involved with these examination
of the past should be had. I would also suggest that a provision
such as this would complement the provisions in the Inquiries
Act 2005 designed to encourage efficiencies.
Alistair Finlay
Assistant Chief Constable
Police Service of Northern Ireland
6 April 2008
|
