Examination of Witnesses (Questions 520-539)
SIR HUGH
ORDE, MR
ALISTAIR FINLAY,
MR PETER
SHERIDAN AND
MR JOHN
BRANNIGAN
13 MAY 2008
Q520 Dr McDonnell: So really you
do not see a lot of overlap and the bit of overlap that there
is you work it out?
Mr Brannigan: Yes.
Sir Hugh Orde: Yes.
Mr Finlay: The Ombudsman is discharging
that oversight over inquiries that are going on within HET that
the Ombudsman does not have the resources to pick up at that time
but maintains that ongoing, regular interest and update.
Q521 Chairman: The Ombudsman has
said in public evidence to this Committee that he would like to
see the historic hived off from his current responsibilities.
He actually said in as many words that there is a danger of the
past overwhelming the present. Any views on that?
Mr Sheridan: I think about 70%
of their work is currently in the past. Judging from the letters
I get, a lot of current stuff is not going to be dealt with.
Q522 Chairman: That was his point.
Mr Sheridan: That is my sense
of where it is at the minute.
Q523 Dr McDonnell: Could you see
any circumstances where this aspect of the work would come under
one umbrella?
Sir Hugh Orde: Yes. It would be
interesting to see what Lord Eames and Denis Bradley come up with
in terms of is there a wider solution. Am I determined to keep
HET under our command? No, I am not persuaded it is necessarily
the right place, it depends where it would fit in something else
if some other model is developed. I would be very concerned if
the work we had clearly stated we were going to do was not done
and I would want to have a serious conversation around that. As
we always saw it right from the beginning, this was part of a
spectrum of outcomes or ways of dealing with history, it was never
going to be the whole one. On the Ombudsman's observation, Chairman,
if one looks at the model in the Republic, of course their legislation
is different, they postdate our Ombudsman and their retrospective
powers, when they were severely limited, were to a very short
period of time pre-appointment. If the current Ombudsman thinks
that is the right way forward, I have no difficulty with that
at all. I need the Ombudsman today to do what the key role is,
which is to deal with misbehaviour by current serving officers
to maintain confidence in police.
Q524 Chairman: That was the reason
for the office being established.
Sir Hugh Orde: I am at one with
that.
Q525 Mr Hepburn: The PSNI was set
up as a new organisation and the Police Ombudsman was set up to
look into things like current misbehaviour by police officers.
The very fact that they are getting involved in historic inquiries
into the 1970s when there may have been wrongdoing by police officers,
do you not think that taints the current PSNI when the Ombudsman
is doing both?
Sir Hugh Orde: My big concern
about all of the historic events that are going on is that it
is reaching such a level of activity, and I say this with some
experience of living through the Lawrence Inquiry, the murder
of Stephen Lawrence in London and the inquiry into that, by the
time that one inquiry reported some many years later the changes
had been achieved. The Metropolitan Police took several years
to recover from that impact because it was seen as if it was only
yesterday, which was your point, and it narrows the gap. I have
lost count of the number of public inquiries we have had both
North and South. We have all of the historic events from the Ombudsman's
office and we have our own Historical Enquiries Team which may
find something out which then has to go to Al Hutchinson to investigate.
You reach a point where distilling one from the other is hugely
difficult and confidence in policing, as I have said, will suffer
as a consequence of that, and unjustly so.
Mr Sheridan: I have personal evidence
of it because the Ombudsman did an investigation into the death
of Sammy Devenny in 1972 when the police ran through his house
after a riot. He was beaten with batons, taken to hospital and
died some weeks later of a heart attack, not the injuries. The
Ombudsman did a reinvestigation in 2002 and she found, quite rightly,
what had happened in the event. I was the Commander in Derry at
the time and was interviewed and there was a lot of stress around
it and eventually I had to say, "Look, I was 12 years of
age when this happened", but in their mind time had collapsed
and they were of the view this was currently what was happening.
Chairman: Could we move on to inquiries
with Mr Anderson.
Q526 Mr Anderson: Sir Hugh, it is
good to see you again. In the written submission you sent us you
mentioned your concerns about the information management procedures
of the various inquiries and the fact they do not provide sufficient
protection. Can you expand on that?
Sir Hugh Orde: Yes, I can. It
is one of the key issues that causes me concern. This is no specific
criticism of inquiries and the role they have been asked to do,
it is the fact that I am losing control of more and more secret
and extremely sensitive material which includes the names of covert
human intelligence sources which historically, of course, would
have been recruited on the clear understanding their names would
be retained by the Police Service and would never go outside that
control. None of my officers can ever say that ethically again
because it is not right in inquiries like this and the Ombudsman
gives powers to require that information to be divulged. We expressed
those concerns in writing to all the inquiries at the start and
sought to make sure processes and procedures were in place to
minimise the impact, but the fact is you lose control when it
goes outside the organisation. Likewise, the Ombudsman who, in
fairness, has a very sophisticated and secure system for document
retention that mirrors ours to the highest level, so it can be
done but it is very expensive, of course. The long-term implications
of this, in my judgment, and it is a judgment, are, if you look
at the current threat to the United Kingdom, will we be able to
successfully recruit sources, young men and women, from the communities
where these current terrorists are being drawn from and radicalised
who may be 20 now, so in 20 years' time, come a public inquiry,
will only be in their 40s and their identities will not be secure.
I think that has huge implications, which is why we feel it is
very important. The risk is compromise and the wider the audience
then the wider the risk, it is as simple as that. I do not know
if Peter wants to expand.
Mr Sheridan: It is very difficult
for people to sign up to be covert human intelligence sources
at the best of times and one of the guarantees we used to give
them in the past was that their identities would remain confidential,
but we cannot do that any more. In the contract with that covert
human intelligence source it becomes more and more difficult to
persuade them that their identities will always remain secret.
It stretches further into the courts, PII and protecting identities
of informants in investigations.
Q527 Lady Hermon: Picking up on what
Sir Hugh just said about the serious implications that are not
just confined to Northern Ireland but our dealing with al-Qaeda
and right across the United Kingdom, that is the point you are
making?
Sir Hugh Orde: I think it has
national and international implications. The other side is what
agencies will be prepared to deal with us from outside if they
feel they cannot be protected. There ways of minimising the risk
and I think that we need to be confident when that material is
outwith our control those risks are minimised, and I think there
are certain standards that need to be maintained. It is a big
issue.
Q528 Mr Murphy: Sir Hugh, have there
actually been any incidents of covert human intelligence sources
being identified as a result of public inquiries to date?
Sir Hugh Orde: Not to date, and
likewise in prosecutions. We will step back, much to our frustration
on many occasions, when the disclosure rules force us either to
withdraw or divulge a source under Article 2. It is really a very
simple, albeit frustrating, decision: you step back.
Q529 Mr Murphy: Just to follow on
from that. One of the powers the Secretary of State has is to
prevent the publication of evidence being published that would
normally be placed in front of the inquiry. You are on record
as saying to us that you thought it would place the minister in
"an invidious position of seeming to intervene in the inquiry".
Sir Hugh Orde: It is a matter
for the minister really, but I think it must be difficult if you
set up an inquiry, a public inquiry, albeit in the Inquiries Act
the word "public" does not feature in it, to be as public
and as open as possible and then you are the same person who says,
"I am sorry you can't hear this bit". In terms of public
confidence in the process that does not seem to make sense to
me.
Q530 Mr Murphy: But if that particular
piece of information is to protect the very people you have just
described, if he does not make the decision then who should?
Sir Hugh Orde: One could argue
the judge of the inquiry might. There is a debate around this
currently.
Mr Finlay: It is a legal debating
issue. What we see at the moment is the traditional PII route
and the legislative route that is in the Inquiries Act and we
have got Lord MacLean particularly in the Billy Wright Inquiry
who believes that he cannot and should not be the arbiter around
that. He believes the Secretary of State is the right person to
do it. Equally, the Secretary of State would have a view, we think,
that he is not the arbiter because it has been provided for in
the legislation that the chairman would do it. It has never come
to fruition as yet because everything that we have had to deal
with has been negotiated because we know about this issue. It
is a grey area and an area which is uncertain and our position
would be that it does not need to be uncertain, it could have
that certainty if they clarified it.
Q531 Mr Anderson: Are you saying
the certainty would come if you had the same sort of relationship
you have got with the Ombudsman where the systems in the inquiries
were the same as your systems?
Mr Finlay: There are two different
things there. One is the clarification between a system whereby
there is the granting of immunity over the release of that information
to another body and the other is the framework of controls round
the storage and management of information once it goes outwith
our control. Our concern about inquiries is we have very strict
regimes of control of the information and we are subject to oversight
and inspection on that; the inquiries are not. The inquiries have
been reluctant to engage in a process where they would give us
assurances as to what that framework looks like. Although we tried
at the beginning to get Memorandums of Understanding to see how
this would work, fairly understandably the inquiries at that stage
were reluctant to sign up to something which would appear to perhaps
fetter their scope.
Q532 Chairman: Each inquiry is effectively
sui generis, is it not, and they all are taking very different
approaches?
Mr Brannigan: Absolutely, yes.
Q533 Chairman: That cannot be easy
for you, can it?
Sir Hugh Orde: No, it is not.
I must try to remember what I say more often!
Q534 Lady Hermon: We will remind
you!
Sir Hugh Orde: I am also very
much on record as saying I will provide whatever the inquiry demands
because that is what the law requires me to do. I think I have
an absolute right equally to raise concerns at committees such
as these and in places that are important because we need to understand
what that means. Alistair leads on this for me, but we have a
whole department providing information. There are very different
ways of dealing with not only inquiries but now we have to deal
with inquests, and again a different approach has been adopted
by the coroner which is a very constructive approach which may
minimise the impact, but still it is an awful lot of work.
Q535 Chairman: We will come to inquests
in a second. On the Billy Wright Inquiry, for instance, when are
you going to give your response to this so-called Position Paper?
Sir Hugh Orde: Alistair?
Mr Finlay: This week.
Sir Hugh Orde: Are we giving it
this week, Alistair?
Mr Finlay: Yes.
Chairman: There we are, very positive
news. Lady Hermon, you want to ask about inquests.
Q536 Lady Hermon: Coroners' inquests
have been described by some of our witnesses as being similar
to a "mini public inquiry" in terms of the workload
for the police. Is that how you have found it? Tell us the impact?
For example, how many people within the police now are involved,
for example, in the Rosemary Nelson Inquiry and the Billy Wright
Inquiry? You have said that the coroners' inquests are quite separate.
Are these different police officers or is it just one room full
of very hardworking police officers, men and women police officers,
involved in this?
Sir Hugh Orde: I will leave Alistair
to deal with the details. It is just another piece of business
of dealing with history, so the strategic impact of public inquiries
adds to the mix of all these things coming into the public domain
which increases the pressure on confidence in policing. In terms
of the structure, it is Alistair's daily life.
Mr Finlay: There is not a team
that deals with each individual issue. The teams, if you like,
are researching different parts of each inquiry or inquest, as
the case may be. We move the capacity around depending on where
the demand is coming from at a particular time.
Q537 Lady Hermon: So how big is your
team, Alistair?
Mr Finlay: At the moment we are
running with about 60 people and we have got a legal team which
is of about 20.
Q538 Lady Hermon: Is that exclusively
what they do?
Mr Finlay: Yes.
Q539 Lady Hermon: They do not do
any other what I would call "normal" policing?
Mr Finlay: No. Those are the ones
who are exclusively devoted to that side. They will then pass
out work to other specialists, in particular Peter's area.
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