Examination of Witnesses (Questions 120-140)
MR AL
HUTCHINSON, MR
SAM POLLOCK
AND MR
JIM COUPLAND
20 FEBRUARY 2008
Q120 Mr Campbell: That is why I called
it an "elephant in the room".
Mr Hutchinson: Yes. It is probably
better for Parliament to debate and discuss that, but I am just
saying there is an important piece of work and I do not want the
victims of the past to be forgotten. We are talking about a premium
for a price. What is that? I certainly cannot answer that.
Q121 Chairman: You are saying to
the Committee—I want to get it absolutely clear—that
it is not your role or remit to say whether a line should be drawn
or not. What you are saying to the Committee is, "If a line
is not drawn, we cannot carry on as we are." There have to
be extra resources, and preferably a hiving off, or you will not
be able to do adequately the contemporary job which we expect
you to do?
Mr Hutchinson: I adopt your comments,
Chairman. You have said it better than I probably could.
Q122 Mr Campbell: I just want to
finish and ask another question. There will be many people—and
I would be one of them—who would look at your work across
the range of areas that you have to work in and would see that
the essence of your work is that you are concentrating on a number
of cases, and if you looked at the number of police officers who
have served you could probably be talking about less than 1% of
police officers about whom there is some suggestion of impropriety.
I do not know if 1% is right, but certainly a miniscule figure,
because most objective observers see the Police Force as, by and
large, doing a very good job most of the time very professionally
and very well. But they see your Office, looking at a small number
of officers against whom an allegation of some form of inappropriate
activity has taken place, and the issue of trying to deal with
the past, even if it appears to be lopsided, in that on the one
occasion when one person, who now happens to be the Deputy First
Minister, openly admitted his involvement in terrorism when he
was put in a box under oath at the Saville Inquiry and declined
to give any rationale or open up any Pandora's Box about people
whom he knew who might help closure be brought to some victims.
Many people would say this is all about concentrating on a very
small number of people, which will not bring closure, and it is
not going to look at the thousands of people who were involved
in an organisation, 100% of whom were law-breakers; rather, it
seems to be focusing on a tiny, insignificant number of police
officers about whom there is an allegation, and how can we ever
get closure if there is an imbalance like that and hundreds of
millions of pounds is spent on trying to do it?
Mr Hutchinson: I am not sure that
is a question, Mr Campbell, but I will try to answer just a small
portion of it! In that part you are right, and it really reflects
my comments as a previous Policing Oversight Commissioner, where
I said that HET and the Police Ombudsman—and I have not
changed this view—are too narrowly focussed—they are
their blunt instruments to deal with societal resolution, and
part of that came from—although I am not an apologist for
the police—the fact that my Office looks at exactly one
small portion of what is a larger issue. I can only look at the
police. I cannot look at other state agencies. I cannot look at
the paramilitaries that were involved. So it is unfair in that
sense, that I only have one piece of a puzzle. So I would adopt
part of what you are saying in this sense, that the consequences
of our process had the effect you talk about. I do not know about
the 1%, but it is fair to say there is a very small number. Most
retired police officers cooperate with us. Some do not. We have
only had a handful of arrests for alleged criminal offences of
former police officers. It casts again an unfair bias towards
the Police Service in Northern Ireland and what they are trying
to do, so it is unfair in that aspect.
Q123 Mr Campbell: Would it help if,
in carrying out your activities, more attention was given to that
type of statement you have just made?
Mr Hutchinson: Absolutely, and
that is why I put it in the submission I made in terms of HET
and our own Office being blunt instruments and only dealing with
part of the issue.
Chairman: Thank you very much.
Q124 Kate Hoey: I agree with what
you say there, that that was certainly the perception, that this
could be very one-sided in terms of, in the end, people living
in Northern Ireland who have lost loved ones over many, many years
where there has not been police involvement and who feel that
they are getting absolutely no ending to their misery and cannot
find closure. How would you feel then if we, as a Select Committee,
came up with the suggestion that actually this was politically
the wrong way to go forward any more and that whilst there is
a need for a Police Ombudsman in terms of today's policing, actually
it is time to put an end to all these huge amounts of money which
end up with, as you have just said, very few people actually being
ever found guilty and for the few who are found guilty nothing
happening?
Mr Hutchinson: Well, I would not
tread on the grounds of the Committee. I am sure you will arrive
at your own wise decision. I will just make the point I made earlier,
that the Police Ombudsman will always need a grave and exceptional
new evidence role to look retrospectively beyond twelve months.
It is the period from 1968 to 1998 that really is both the elephant
in the room and the problem for my Office currently and into the
future.
Chairman: I think you have made
it very plain that 1968 to 1998 is a burden too much for you and
that somehow this is—you are quite right—a political
issue and we have got to make our recommendations on this. Somehow,
that burden has got to be lifted if you are adequately to perform
the contemporary role (as I called it earlier) which Parliament
and statute has placed upon you. We must deliberate and we must
take other evidence and decide whether it is right that there
should be another body, side by side with you, looking at other
sorts of crimes. That, I fully accept, is not for you, but you
have been very clear in what you have said and I would like to
move on now to Rosie Cooper, if I may.
Q125 Rosie Cooper: Mr Hutchinson,
just to go back on some detail you have referred to so far, are
you satisfied with the level of access your approved staff are
getting to the various bits of information by the PSNI?
Mr Hutchinson: Yes, absolutely.
There are no barriers at this stage in access. We have total access.
I am confident of that.
Q126 Rosie Cooper: That is really
good. Do you believe there is adequate legislation to protect
informants, and if not what legislative changes would you consider
to be justified? If you ever get into a really difficult situation
where people believe the information they have given to the police
will come out and the informants will be identified, then this
whole thing will dry up of its own accord anyway.
Mr Hutchinson: A couple of points.
One, as a former police officer I know how important informants
are to policing. Traditionally there is an acceptance of that
and usually a neither confirm nor deny policy. Again, Lord Chief
Justice Carswell spoke a bit about that and when Nuala looked
at this and publicly reported Jean McConville's case she decided
to break that, which can be done in exceptional circumstances,
just to confirm that Mrs McConville was not an informant. The
protection given by the state for informants generally is part
of the accepted rule. I cannot really speak authoritatively as
to the legislative changes of provisions, but I think the protection
of an informant, except in the most exceptional cases, is really
what the state should be doing.. There is a consequence of that
in Northern Ireland—and it bleeds over again into normal
policing—which is a residue of the past, that every police
stop tends to lead to the belief that there are informants out
there and that there is an ulterior motive behind it. I am satisfied
that the police not only culled their informant list from 2003
onwards, in other words those engaged in criminal activities,
but that it is a fairly robust system now, subject to a number
of protections. Again, the protection principle, I think, is important
for law enforcement, and of course it is not only the police.
So I think that is well-established. I could not really go beyond
that in terms of legislative changes, beyond that principle.
Q127 Rosie Cooper: What about publishing
any information about informants? Does your approach differ in
any way from that of the PSNI?
Mr Hutchinson: No. We have tried
to be very rigorous about that and I said earlier that unless
there are exceptional circumstances we would not disclose it.
It has only been done in one case, after we received information,
but our security handling—and if the Committee comes to
our Office in Northern Ireland you will be able to see our intelligence
unit and how we handle that with only access to direct vetted
people and it is very electronically secure handling, because
we receive information from not only the police but a number of
agencies.
Q128 Rosie Cooper: Can I take it
from your comments that you are saying the real hindrances you
have are staffing and money, and that on the actual ability to
do these inquiries, should they be met, you have got no hindrances
whatsoever?
Mr Hutchinson: That is accurate.
Q129 Chairman: Would you like to
amplify a point you made in your written submission in the context
of these questions when you talked about "unlawful practice
and policy in the use of sources" in Northern Ireland? Are
you satisfied with the progress which has been made by the PSNI
in changing those practices? Would you like to amplify a little
on that?
Mr Hutchinson: Actually, I will
ask Sam to do that because he has been more involved in the last
seven years, but fundamentally that relates to participating informants
following ACPO guidelines and participation allegations perhaps
more where agents have been involved in murders. Sam, could you
perhaps amplify that in relation to Operation Ballast, which might
be the best example?
Mr Pollock: The reason it took
such priority was because it was a concern that the practice at
that point was still ongoing and we notified the Chief Constable
of our concerns and there was an immediate response to that. We
were also satisfied even with the response to the recommendations,
not just in the public report but in the private confidential
report to the Chief Constable on particular matters and there
was a full and adequate response to that. Is the world perfect?
I cannot say that, but we feel the whole conduct and performance
and compliance with procedures and authorisations is absolutely
correct, satisfactory, and there would be no current concerns
on that.
Q130 Chairman: There are no current
concerns?
Mr Pollock: No.
Q131 Chairman: So you are content
with the way things are for the moment? You are content, as I
understand from earlier answers, with your relations with PSNI?
Mr Pollock: Yes.
Q132 Chairman: You see for yourself
an important and continuing role as a public watchdog and guarantee
of the impartiality and the operational effectiveness of PSNI?
You see all of these things as being very positive, presumably?
Mr Pollock: I do.
Q133 Chairman: So we keep coming
back to this terrible problem of the burden of the past. Would
you say there is a danger, unless we do get this balance right—and
I am not asking you to say how we should do that—there is
a danger of the present being overwhelmed by the past and therefore
the future operation of your office being jeopardised?
Mr Hutchinson: Absolutely, and
again I adopt your comments and I referred to the Oversight Commissioner's
comments as the choice, policing the past or policing the future,
and I am afraid we are being dragged into policing the past. But
I want to emphasise the point that there are very legitimate victims
across certainly the police, the military, the communities, who
are crying out for some resolution, so I would never abandon them,
but certainly -
Chairman: Of course. Nothing you
have said to this Committee makes us consider you to be insensitive
in your response to the past, but you are merely being realistic,
and that is very, very helpful.
Q134 Sammy Wilson: Could I just ask
about the submission you made to us, Mr Hutchinson, in paragraphs
2.6 and 2.7? I know you have said that you do not have discretion
as to whether or not you investigate a case if it is referred
to you, and it may well take some time before politically some
alternative can be found, but would you have discretion along
the lines in 2.6, where a case is referred to you but if there
is no new evidence you could exercise discretion at that point
and say, "Look, there's no point in us devoting resources
to that case because there's nothing new that has come up anyhow"?
Would that be one way of filtering out some cases, and what work
would be required to be done? There would be a lot of work required
to be done to ascertain whether or not there was new evidence,
so would that be a kind of safety valve in the short-term, or
do you not even have that discretion?
Mr Hutchinson: No, in fact we
do that de facto. When we prioritise these cases the first step
is that it is not only grave and exceptional, it is whether or
not we have any new evidence, whether it has been investigated
before. So that is one of the considerations. Correct me if I
am wrong, Sam, but we probably have turned cases away where there
is no new evidence. It is part of our requirement.
Mr Pollock: Yes.
Mr Hutchinson: But we do that.
As I said earlier, I have no discretion in taking the cases in,
but then we go through a process of really prioritisation and
frankly putting some to the side and judging, hopefully correctly,
that some are more important than the others, and that is simply
a matter of resource allocation and time and priority that is
available. But everything which comes through the door has to
go through that filter. Is it new evidence? Has it been investigated
previously? Certainly, is it grave and exceptional?
Q135 Chairman: But that filter itself
can become clogged?
Mr Hutchinson: Well, it can, and
in terms of our scoping exercise, to answer all of those questions,
it simply takes time and we have to do it.
Chairman: Of course.
Q136 Kate Hoey: Chairman, one brief
point—it might even be Mr Coupland because he is in charge
of actually investigating—you talk under 2.18 about "the
identification of good practice and policies that have evolved
but did not exist 20 or 30 years ago". If you are investigating
something which took place nearly 40 years ago in the middle of—you
know, some of us who lived through that know just how difficult
it was for anyone to do anything in Northern Ireland, never mind
the police. What priority do you give to that in terms of looking
at whether you could really investigate something that happened
that length of time ago and get the evidence based on the fact
that the police acted differently there by nature of the fact
that they were fighting people who really saw themselves at war?
Mr Coupland: The point was raised
earlier about contextualisation. You have got to contextualise
it. If it is something that occurred, a homicide, 20 years ago,
the ACPO manual guidance for homicide investigation was not even
out then. There was no RIPA, no authorisations, so there has been
a whole load of changes and legislation and police policies and
practice, and when you look back you have to look back to what
was available to the Police Service at that time.
Q137 Chairman: Not to mention the
scientific advances and DNA, and all that?
Mr Coupland: Absolutely.
Q138 Chairman: What I would like
to do now, if you are agreeable, is that it would be helpful if
we had our private session now.
Mr Hutchinson: That is acceptable
to us, Chairman.
Chairman: A final public question,
yes.
Q139 Stephen Pound: Could I just
say that it is unfortunate there is no representative of any of
the Nationalist or Republican political parties here, but I am
sure if they were here they would say that any suggestion of a
diminution of your historic role would be greeted with considerable
opposition in those communities. I am well aware of your sensitivity
on that and I think it is extremely important, but I wanted to
ask you a question specifically about the point you made about
forensic evidence, particularly post-Omagh, when you said that
in effect the evidence chain could be challenged on the basis
of modern information and that modern techniques were not applicable
then. That struck me as being in some ways one of the most terrifying
things you have said, and I have to say my admiration for you
and your team has grown throughout the course of this inquiry.
I am just wondering how you can objectify an investigation from
such a long period of time without that irrefutable, non-specific
forensic evidence. Are you saying that forensic evidence can exist
from 40 years ago and it will not be challenged, or are you saying
that whatever forensic evidence exists it was either of such low
quality that it is of no value or it would be challenged?
Mr Hutchinson: A couple of points
in response to that. First of all, I think we are obliged to walk
through the whole process examining possibilities of forensic
evidence, carrying through an investigation to the point where
we have something either to take to the Director of Public Prosecutions
or not. I would mention that the final benchmark is that the Director
of Public Prosecutions will make the decision based on what we
have surfaced. Part of the whole problem is really what you have
illustrated. There are very few evidential solutions 30 years
on, because of the whole variety of reasons you have talked about.
That does not stop us from having to go through that diligent
process of finding it out, because that is the complaint. As I
have mentioned, in some cases it not only raises expectations
but in a lot of cases the police are exonerated, the points are
not substantiated.
Q140 Chairman: It both raises the
expectations and dashes the hopes at the same time?
Mr Hutchinson: It does, and I
think any process on the past will risk that, unfortunately. That
is not to say that public authorities should not go through the
steps. A murder is never closed, in my view, in any country, and
we just have to go through the process.
Chairman: I think at that point, that
is very, very helpful and I would like to thank you publicly,
you and your colleagues. The evidence you have given and the clarity
has been very helpful to us and we will now briefly deliberate
with you in private, so could I ask that the gallery be cleared,
please.
| 
