Examination of Witnesses (Questions 60-77)
SIR HUGH
ORDE, MR
ALISTAIR FINLAY
AND MR
DAVID COX
6 FEBRUARY 2008
Q60 Mr Anderson: The other thing
I want to raise with you is something from the British Irish Rights
Watch. They said one of the reasons why it has taken so long for
the HET to work is that, effectively, a lot of the work you are
doing is equivalent to the work that was done around something
like Soham, but you are not resourced to the extent that Soham
was. Would that be a fair comment to make?
Sir Hugh Orde: I think Soham was
a fundamentally different issue; it was around the capacity of
the Force to deal with a critical incident that was way outside
its ability. Many chiefs sent—indeed I sent—people
to help with that particular inquiry. So I think that is slightly
different. The reality is we were given a pot of money to do something
very different. As David has said, I do not think we could have
done it any more quickly, frankly. There is a limit to the number
of people prepared to do this sort of work (the turnover speaks
for itself), and what we have got is something that has got a
fairly clear timescale and, interestingly, is now delivering outcomes.
If one was to look at other attempts at dealing with the past
I am not sure I have seen one that has delivered an outcome. We
await, for example, the Saville Inquiry report, which I am told
should be, perhaps, this year. Other public inquiries are now
up and running. On the Finucane Inquiry, the jury is out on whether
it is going to take place at all. As long as that is in the margins
I still have to make sure we have available to that inquiry, should
it ever exist, a fully resourced capacity to deliver all the material
for that, which is huge.
Q61 Chairman: When you were answering
Mr Anderson's first question you said that you had no proprietal
exclusivity here, and indicated that you were fairly relaxed on
that score. Would I be right to infer from that that you would
really like to be rid of it and like somebody else to be doing
it, or do you feel that you would like to see it through?
Sir Hugh Orde: No, I would not
like to (do not worry, David, you can stay for a bit), because
what it said was a very clear statement about modern policing,
which was that we were not running away from anything, we were
absolutely up for facing the issues, and, indeed, if anything
David uncovers merits an ombudsman's investigation it goes straight
to the ombudsman. From that point of view, it shows our determination
to deal with what is a police duty, which is to investigate and
not to give up on unsolved cases. Where it is different is that
it recognises with a degree of pragmatism the reality, and the
reality is we are convinced we can help families. We are less
convinced we can do what police officers traditionally do, which
is take these things to a legal conclusion. That has not stopped
us doing it and we are not closed to that idea. Certainly, if
we can build a case, that is what David's people do because they
are detectives and that is what they do for a living.
Mr Finlay: The scale of this is
just so different, I think, from anywhere else. We have recently
been visited by people from Strathclyde police, who are interested
in following the processes in going about their unsolved murders.
That force, which came into creation in about 1975, currently
has 33 unsolved murders—and that will not be untypical for
any of the county constabularies across the rest of Great Britain—against
the thousands that are actually in place in Northern Police. The
scale of this is so large it has to be approached differently.
Q62 Mr Fraser: This is a wider point
but it is about operational ability. Will devolution of police
powers have an impact on that, in your opinion?
Sir Hugh Orde: I cannot see how
devolution of policing and justice would actually impact necessarily
on us. What might impact on the past issue is if it is adopted
by Stormont as something they would want to take responsibility
for. If they have taken responsibility for everything else and
policing and justice goes across they may want to take responsibility
for coming to terms with difficult history, in which case your
suggestion may be that they will want to form some form of overseeing
body, some ministry, or whatever, to deal with it in a different
way.
Q63 Sammy Wilson: Regardless of how
it was dealt with, you would still, Sir Hugh, want to ensure that
the intelligence sources, the agents and the techniques used in
the past were still protected and, therefore, there would be a
role for you in ensuring that certain information was not made
available to whatever method was—
Sir Hugh Orde: Absolutely. That
responsibility rests with me as the owner of the material. What
it does, of course, is it creates that tension. I understand the
frustration of people who are looking to get material and where
we have to look at our legal requirements, and people sometimes
forget that it is not us being obstructive it is us carrying out
our legal duty. Yes, we have to stand by that because it is an
Article 2 issue.
Chairman: I would like to move
on to the final section because it is a very important part of
our inquiry.
Q64 Stephen Pound: Good afternoon,
Sir Hugh. When we met in the autumn of last year you were talking
about the conflict between the Inquiries Act 2005 and the need
to protect—I seem to remember the felicitous phrase was—"covert
human intelligence sources". You were particularly worried
about how this would impact on the Enquiries Team. What is the
current situation?
Sir Hugh Orde: The current situation
is as we discussed, and I am mindful that the British Irish Rights
Watch made some observations with which, I have to say, I take
some issue. The reality is very simple, for me: section 29 of
the Regulation of Investigatory Powers Act is very clear and it
is around: "you do not divulge details of informants unless
there is very good reason". The law of the Inquiries Act
is equally clear that I am not going to obstruct a public inquiry
set up under current legislation, which means people must have
access to this material. The conflict is, as a strategic issue,
people are clearly going to be very circumspect about giving intelligence
to any police service—and this transcends Northern Ireland—if
they feel that, five, ten, 15, 20 or 30 years down the line, that
is made available to other people. That is not to say other people
would want to give it up or would lose it accidentally, but the
risks increase exponentially as you widen the net. We are already
experiencing some concerns in that particular area. It is not
just around domestic terrorism; there is the notion that someone
who is 15 or 20, currently, who can give information on the current
international terrorist threat, is going to look forward and think:
"I will only be 40 when this could actually be out in the
public domain. I am still going to be about." So that is
the key strategic issue which needs to be resolved. In terms of
individual cases, I think my fear is I come to a point where I
feel Article 2 issues are so overwhelming I am going to have to
seek some form of legal clarification of what my responsibilities
are. Sitting as the current Chief Constable, the last place I
want to be is judicially reviewing any public inquiry. I think
that is a very bad place to be for a Chief Constable—or,
likewise, on an inquest.
Q65 Stephen Pound: This is a question
which comes from the outer limits of ignorance in your profession.
If a person is a "covert human intelligence source",
our views are shaped by films like The Informer and various
stereotypes: in some cases they do it ideologically, in which
case it would not matter, in some cases they do it financially,
in which case it would matter, and in some cases they do it for
internal feud advantage, in which case it would certainly matter.
I appreciate those are very broad categories, but are those the
sort of categories that represent the people who bring this intelligence
to you?
Sir Hugh Orde: Yes, you have covered
them pretty well in terms of the academic literature on this subject,
but you have missed out revenge, which sometimes is one of the
most effective—certainly, dealing with some crime in London,
certain people who felt they were being let down or unfairly dealt
with gave very good information on criminal gangs. I do not know
if David would want to add anything to that.
Mr Cox: I think that covers it.
In terms of our dealing, on the informant issue, it is a big question
for some families—"Will you tell us if there was an
informant?" We are quite adamant about this and honest, again,
from the start. The only issue that we would have with an informant
or covert human intelligence source is if that person has committed
serious crime. There is no judicial cover for people to commit
serious crime just because they are giving information. So if
(and we did this when we were on the Stevens investigation and
we hold true to the same principles) we find that somebody is
acting as an intelligence source but is also committing serious
crime, then they are investigated the same as anybody else. Otherwise,
it is not for us to put people at risk.
Q66 Stephen Pound: You said they
are investigated the same as everybody else. The source for many
of us in London is the whole Bertie Smalls Inquiry, and you remember
Maurice Mahoney and the information that was given at that particular
time. That was done as a straightforward trade-off: "I'm
an armed robber, he's an armed robber; if I give you him you don't
go after me". Surely, that is not analogous for the current
situation that you are describing.
Sir Hugh Orde: No, it is not at
all. Again, if we are talking about judging the past by current
standards, we did not have the Regulation of Investigatory Powers
Act to make the United Kingdom compliant with human rights' legislation,
and it is quite a complicated piece of work. What it does do is
it, at least, sets a benchmark for how covert sources are handled,
and is overseeing the Surveillance Commissioner, and our reports
from the Commissioner—which are always very tough—are
very complimentary about how we now handle informants. David is
right, if someone steps out-with their authority then all bets
are off. Sunday school teachers do not make particularly good
informants; you are dealing with people who, by definition, are
operating in the margins of criminality or, certainly on terrorism,
probably within that community. That is why you get the information.
There are protections you have to put in place. However, we, again,
find ourselves up against not only legislation but Court of Appeal
cases, and the very helpful advice is we should never confirm
or deny who an informant is—immensely frustrating to people
who are trying to understand this, but we are bound by law. So
we find, again, this frustration tends to be vented on the police,
who are seen as being furtive and underhand, but, actually, all
we are trying to do is comply.
Q67 Stephen Pound: How do you, as
a thief-taker differentiate between the daily intelligence that
every decent police officer has to get, walking the patch, picking
up what people are saying, and specific targeted intelligence?
Is there a managing divide there or do the two flow into each
other?
Sir Hugh Orde: The whole thing
fits what we have in the national intelligence model, so all intelligence
goes into one place. Again, one of our major reforms was to centralise
intelligence within the Police Service Northern Ireland. Access
to that intelligence depends on need. Frankly, in dealing with
what we call ordinary crime—burglary or car crime—informants
are just as important, as a level one informant, as your most
senior informants who are giving you information about armed criminality
or, indeed, terrorism. So it is a process of handling, access
and, indeed, action on. In many cases—and, again, I understand
the frustration—just because someone tells you something
does not necessarily mean you can act on it because to do so would
put that person at huge risk. So you have to do certain things
to prevent the event happening, for example. It is a very complicated
piece of business. It is as much an art as a science, but it is
underpinned by very clear legislation and the starting point,
in my organisation, is strict compliance with the law.
Chairman: That is very reassuring.
Q68 Mr Murphy: I wonder, Sir Hugh,
if you would be able to comment on my next question. It deals
with the darkest period of the troubles, and whether indeed the
RUC, as was then, would have actually handled informants or whether
that would have been handled by the intelligence services.
Sir Hugh Orde: There is no doubt
that substantial numbers of informants were handled by the RUC,
who had primacy on national security. In fact, they were the lead
agency up until September of last year when we handed that over,
quite properly, to the security services. So informants were handled.
Of course, they were handled out-with guidelines like RIPA because
RIPA did not exist in that period of time. So they were handled,
basically, against guidelines rather than legislation, but they
certainly were handled and they certainly were responsible for
preventing an awful lot of terrorist atrocities—there is
no doubt about that.
Q69 Mr Murphy: Are there records
covering all of the individuals concerned?
Sir Hugh Orde: There are records.
David can probably tell you a bit more than I can. My work is
on Stevens, and there were records, but whether they were complete
or not, of course, is a discussion point on each case which has
to be looked at to triangulate it against everything else. Indeed,
that is, I suspect, much of what the inquiry is going to do.
Mr Cox: Yes. There are some records.
There were registered informants and there were casual contacts.
Where the Chief was going, I think, is if you are dealing with
crime of this nature and professional paramilitaries who cleaned
scenes forensically so that there is no other evidence, it chops
down the availability of investigative tools that you have; you
really are left with people who are going to give you information
as one of your main weapons in the armour. So it is no surprise
that we see this big focus on information from sources during
the worst times of the troubles. In terms of record-keeping, it
is pretty much as Mr Finlay said earlier: there are some records.
Sometimes they are patchy and sometimes they are better kept;
it is a case-by-case issue.
Q70 Chairman: Sir Hugh, when you
were answering Mr Pound earlier you gave me the impression that
you had a solution in, perhaps, improving legislation under which
you are currently suffering, which is clearly inhibiting the possibility
of your historic inquiries being brought to a successful conclusion.
I would not be wrong in inferring that, would I?
Sir Hugh Orde: I am not sure that
I have a solution—I wish I did have. I have a lot of frustration
because we are trying to deliver across this very broad and unique
set—
Q71 Chairman: However, you do not
feel you can necessarily deliver if you are inhibited in the way
that you now feel you are inhibited.
Sir Hugh Orde: My concern for
the future, which I am very interested in, is my ability to gather
intelligence, I think, because this series of events will become
increasingly hampered. I do not see, frankly, people being prepared
to stand up and engage with us on a "covert human intelligence
source" basis. They do not feel that the protections that
were available to them are any longer available to them.
Q72 Chairman: Bearing in mind that
it is the duty of this Committee to recommend to Parliament what
should be done, because we are a Committee of Parliament and not
a Committee of Government, would you give a little thought as
to whether you feel there are things that we ought, in this context,
to be recommending? I cannot say we would necessarily adopt them
but we would like to know what you have in mind.
Mr Finlay: Maybe I could pick
up on that, just briefly. It goes back to the Inquiries Act, which
is a fairly new piece of legislation, 2005, but it has now been
in operation, utilised by two of the public inquiries, and there
are difficulties around some of its provisions. We would experience
some difficulties, and maybe some other people have difficulties.
One of the issues around it is that there is a requirement for
us to deliver to the public inquiries, for example, everything
we actually "have". We "have" information
but we do not necessarily "own" it, so if we get other
information, intelligence, from another (say, the security service),
we do not actually own it but we are then legally obliged to give
somebody else's property across to the inquiry. Some of these
nuances were not envisaged and they actually cause some difficulty
between the various respondents to the inquiry, and there is also
an emerging issue around about restriction, where there is an
opportunity, in section 19, to restrict certain information from
the public—it could be to not include it or it could be
to screen it first. So far we have been able to agree with the
inquiries our agreed redactions and such like. However, if we
get to a stage where there is something we disagree about, then
there are two routes: there is a route that goes to the Secretary
of State and there is a route that goes to the Chairman of the
Inquiry. Our understanding—and I think Lord MacLean in the
Billy Wright inquiry is on record as saying that he does not anticipate
that this is his role and that it would be right for him to seek
to limit his inquiry, whereas, equally, the Secretary of State
is placed in the invidious position of seeming to intervene in
the inquiry. It is anticipated that that lacuna in law would end
up having to go to judicial review and eventually, maybe, to the
Lords to get resolved. There is, perhaps, an opportunity before
that for Parliament to reconsider or to consult upon how the law
works and, perhaps, take some representations with a view to amendments
that would actually be more efficient to do rather than to put
it to the law.
Chairman: Hence my question, and
we would wish to consider what you believe would be a sensible
way forward, so that if we decide to make recommendations we would
take your thoughts carefully into account before framing those
recommendations. That must not be taken as a promise that we would
agree, but we want to know to help us formulate our proposals.
I know Mr Wilson wants to end on a rather different matter but,
Mr Pound, did you want to come back?
Q73 Stephen Pound: A very quick point
but it is an extremely important point. I interpreted what you
said as, in legislative terms, there is a fundamental incompatibility
between two pieces of legislation. Is that a correct interpretation?
Sir Hugh Orde: I think that is
pretty fair—is my interpretation. Alistair is, clearly,
going to disagree with me, which is fine.
Q74 Stephen Pound: He used words
like "lacuna"—
Sir Hugh Orde: My argument would
be that Article 2 must override all of this, it seems to me. Section
29 of the Regulation of Investigative Powers Act is clear. What
the Inquiries Act, basically, says is you must furnish everything
to the inquiry. I am not a lawyer, thank heavens—if I was
I would be on one of the inquiries, I guess.
Q75 Chairman: A much better paid
job!
Sir Hugh Orde: From an informant's
point of view, which is what I am looking at, the reassurance
of a police officer saying: "We can protect your identity"
is not true any more, and my officers are professionally bound
to warn the person who they are trying to recruit, who may be
a vital link in a missing intelligence chain which may in the
future keep people alive or stop atrocities, that "I cannot
protect your identity in certain circumstances", because
he or she cannot, because that is what the Inquiries Act says.
I do not know if Alistair would like to shorten his career by—
Mr Finlay: Sir Hugh is, of course,
right in that approach.
Q76 Stephen Pound: He will go far!
Mr Finlay: In terms of the legislation
there was, within the Inquiries Act, an amendment put in relative
to RIPA. These cases, particularly Rosemary Nelson and Billy Wright,
go to the heart of having a public inquiry into secret intelligence,
and how it was handled. The legislation really was not written
with that in mind and without the objectivity of RIPA. Putting
all that together, it seems to me, yes, there is a legislative
incompatibility in terms of purposeful outcomes.
Chairman: You are walking the
tightrope between obedience and dependence with great skill, in
agreeing with Sir Hugh, in effect. Anyhow, that is very, very
helpful. Before I close the session, I think you have been advised
that Mr Wilson would just like to ask a question about a very
current event, following the Prime Minister's statement today.
Q77 Sammy Wilson: Sir Hugh, you have
mentioned today about the ongoing threat from dissident republicans,
and on previous occasions you have talked to us about the increasingly
sophisticated methods that criminal gangs, and paramilitaries,
mostly in Northern Ireland, are using. I know that you have made
some comments about the use of intercept evidence. Today the Prime
Minister made a statement to the House of Commons indicating that,
albeit with caveats and limited circumstances, intercept evidence
could and may be used in criminal cases. However, this is only
going to apply to England and Wales, despite the fact that police
and justice has not devolved in Northern Ireland and, therefore,
surely, it should be a responsibility of government here. Northern
Ireland has not been included. Have you any comment to make on
that as to, first of all, how it is likely to impact on the police
ability to deal with some of the current problems in Northern
Ireland, and, also, what representations the police would like
to make to the Government on this to ensure that we will not have
our hands tied in Northern Ireland?
Sir Hugh Orde: Intercept evidence
in the UK is a hugely sensitive issue, and there are very mixed
views, I think it would be right to say, among security and law
enforcement agencies. That having been said, if that is what the
Prime Minister has said, my question would be: "Why am I
being treated differently?" I would like to think it may
be an oversight rather than some deliberate omission. So I cannot
think of a logical reason why you would exclude Northern Ireland
from that debate. Indeed, the reality is, when you are dealing
with these sorts of cases, it is not just a national issue it
is an international issue, and there are a number of jurisdictions
where intercept evidence is admitted, and indeed it has been admitted
in the UK courts because it was drawn from another jurisdiction.
I would be concerned if I was excluded, in the same way as I am
concerned that I am routinely excluded, in the first instance,
from legislation which is seen as fit for policing in the rest
of the UK. It is a matter of record we do not have a Crime and
Disorder Act; we do not have, currently, the ability to issue
fixed penalty tickets to minor crimes, and when I took over we
did not have a power of arrest for disqualified drivers, although
it was available in 1972 for the rest of the country. I do think
we should be seen as part of the policing effort in the United
Kingdom, so I would be concerned, but as I only heard about it,
literally, as I came here, I have no logical explanation that
I can think of.
Chairman: It would be wrong to press
you, but I am very grateful for that honest answer. I want to
discuss this with my colleagues, but it seems to me that this
disparity between you and other police forces on a range of issues
is something this Committee might well look at when we have completed
our current inquiry. Thank you very much indeed for today. Everybody
has been very good with their questioning; you and your two colleagues
have been marvellous with your answers—we are very grateful
for those—and that means that you should have no difficulty
in catching your flight. We wish you a safe flight back and look
forward to seeing you on our next visit to Northern Ireland. Thank
you very much. The session is closed.
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