NIRPOA submission on dealing with the past to Haass

N I R P O A - NORTHERN IRELAND RETIRED POLICE OFFICERS ASSOCIATION

Written Submission by the Northern Ireland Retired Police Officers Association to Dr Richard Haass on “Dealing with the Past”

The Northern Ireland Retired Police Officers Association (NIRPOA) has a membership of some 3,000 retired officers of the Royal Ulster Constabulary George Cross (RUCGC) and the Police Service of Northern Ireland (PSNI). It seeks to represent the interests of all retired police officers within Northern Ireland (numbering some 10,000) as well as their families. It is recognised by the government and by local politicians as the voice of retired members of the RUCGC and PSNI. It is funded by a modest annual subscription levied on its members.

The association participated actively with the Consultative Group on the Past (CGP - “Eames-Bradley”) and now wishes to share its views on the future of Northern Ireland and mechanisms for dealing with the past with the team led by Dr Richard Haass. We made oral submissions to the CGP and provided a written response to their final report. A copy of our response is attached at Appendix I. Two of our members subsequently gave evidence to the House of Commons Northern Ireland Affairs Committee on the report of the CGP. A transcript of the evidence is provided at Appendix II. We would be happy to meet with Dr Haass to expand upon the views which are expressed in this paper and to answer any questions. This is our written submission.

Contents

Page

Executive Summary 3

Introduction 5Structure of the Submission 5Setting the Context 5

Dealing with the Past – The Institutions and their Current Shortcomings 7 Police Ombudsman for Northern Ireland (PONI) 7 Public Inquiries (PIs) 8 Historical Enquiries Team (HET) 8 Inquests 9 Criminal Prosecutions 10 Civil Actions 11Some Proposals from Others 11 Amnesty 11 Truth Recovery Commission 11 Creation of an Historical Archive 12Some Recommendations from NIRPOA 13 PONI 13 HET 13 Inquests 13 Victims 14 Welfare of the “Police Family” 14Conclusion 14

Appendices 16

Appendix I – NIRPOA Position Paper on CGP Report 16Appendix II – Extract from uncorrected record of hearing of Northern Ireland Affairs Committee – 29 April 2009

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Appendix III – “Collusion” – Easy to Allege But Hard to Define? 38Appendix IV – Response to DOJ Consultation on Future of OPONI 43Appendix V – Response to Additional Proposals re OPONI 59Appendix VI – NIRPOA Letter to HMIC re HET 61Appendix VII – NIRPOA Short Briefing Note – Controversial Inquests 64

Maryfield, 100 Belfast Road Holywood, BT18 9QY Telephone 028 9039 3568 Fax 028 9042 3556 Email [email protected] as a Charity with the Inland Revenue Reg No XR74702 SKYPE: NIRPOA Web Site www.nirpoa.org

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http://www.nirpoa.org/

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Executive Summary

In order to ensure that those who were formerly engaged in terrorism remain committed to the political path the British government has made concessions in relation to the role and scope of a number of institutions which deal with the past (for example Coroner’s Courts, the Office of the Police Ombudsman for Northern Ireland). This is to enable the rehabilitation of those who previously rejected democratic institutions. This is a political decision for government. Part of the outcome of this is to facilitate, often at public expense, a continual campaign of baseless denigration of the members of the Royal Ulster Constabulary George Cross and the Police Service of Northern Ireland, including very many of our members.

The adverse effect of the tampering with these institutions has been exacerbated by the appointment to some of them (for example the Office of the Police Ombudsman for Northern Ireland, the Historical Enquiries Team) of staff who are poorly equipped for their work in terms of training and experience and leaders who have frequently demonstrated flawed judgement, resulting in injustice for many of our members.

These injustices and the absence of remedy have led to a loss of confidence among our members in these institutions and concern about the apparent indifference of our political leaders.

Our association holds no brief for any police officer, serving or retired, who may have committed criminal offences, whether in relation to the performance of his or her duty or otherwise.

Significant changes are now required to the way in which such institutions are empowered, structured and run if they are to regain the confidence of those with whom they deal.

Our association does not support the concept of amnesty for criminal offences. This would be inimical to the culture which was inured in us over many years in order that we might meet society’s expectation to bring offenders to justice relentlessly, whatever the difficulties or delays may be. Furthermore there are many practical difficulties in relation to admissions, forensic matters and intelligence inherent in any amnesty. There are alternative methods for showing clemency and permitting the rehabilitation of offenders.

Our association does not support the concept of a “truth commission” as the circumstances in which such tools have previously been used have been completely different. Nor do we have any confidence that anyone other than our members would actually tell the truth. Some of the truths which our members might reveal may not be considered to be helpful to the political or “peace” process.

Our members have been subjected to a barrage of public inquiries, inquests, inquiries by the Historical Enquiries Team and inquiries by the Office of the Police Ombudsman for Northern Ireland; a truth commission would be regarded by some


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as an additional burden. It is time for our members to enjoy the retirement which their public service has earned.

Financial support for the welfare arrangements which are in place for retired police officers and police dependents should be guaranteed; they should not be vulnerable to changes in the political climate in Northern Ireland.

Although we lack political power, our association has lobbied, and will continue to lobby, for support for our objectives in achieving justice and dignity for our members. We hope that the initiative led by Dr Haass will recognise the merits of our arguments and take steps to secure their implementation.

Introduction

As the representative organisation for retired police officers of all ranks, male and female, including officers who performed duty in specialist departments, we have participated actively in a range of processes since the Good Friday Agreement (GFA) of 1998 in an attempt to assist in the development of a better future for all the people of Northern Ireland while protecting the interests of our members. As was the case while we were serving officers, our aspiration has always been to achieve justice.

As serving officers we sought in good faith to implement the GFA and the recommendations of the Independent Commission on Policing (Patten Commission, 1999) on changes to policing in Northern Ireland. As retired officers we have engaged with those institutions which emerged from the peace process in relation to policing issues, although our experience with many has been disappointing to say the least. Nevertheless our members have participated in public inquiries, inquests and other hearings; we have engaged with the Office of the Police Ombudsman for Northern Ireland (PONI), the Historical Enquires Team (HET), and the Northern Ireland Commission for Human Rights (NICHR); we have given written and oral evidence to parliamentary bodies, including politicians and officials; and we have lobbied public representatives at national and local level. We therefore have significant experience over the last fifteen years of the issues and problems surrounding current attempts to deal with matters arising from the past.

Structure of the Submission

The present deliberations are intended to help Northern Ireland to move forward into the future without allowing the past to destroy any hope of progress. That does not mean ignoring the past; but it must mean dealing with the past in a way which addresses the concerns of people from all parts of our community, many of whom have competing agendas for the future and widely differing perceptions of the past.

Our submission will limit its scope to the issues which directly affect our members, although our opinions and recommendations will frequently have broader implications. In relation to the past our principle concern is that there will be no


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attempt to rewrite history in a way which seeks to imply some sort of moral equivalence between the police (and other elements of the security forces) and the terrorists. In relation to the future our principle concern is that our members will be able to live out their lives in dignity and privacy, with appropriate care being provided for those with physical or mental problems which are attributable to their public service.

We will therefore examine a range of issues, predominantly in relation to institutions which are currently being used to deal with the legacy of the past, which give us cause for concern. We will then consider some proposals which have been mooted by others as options for the future. Finally we will offer our own suggestions as to how matters which bear upon our members might be addressed.

Setting the Context

As police officers, serving and retired, we have always accepted that we do not have any political role. We have therefore never sought to interfere with the process by which, perhaps inevitably, many of those who were involved in criminal activity entered the political arena and in due course came to hold public office. Indeed we believe that it was largely through the sacrifice, endurance and impartial service of the police, (always supported by colleagues in Her Majesty’s armed forces and the security services), that the terrorist organisations were eventually persuaded to bring their evil campaigns of violence to an end in favour of political activity.

It is understandable that those who were engaged in violence should seek to absolve themselves of blame for the horrors of the last forty years if they are to be accepted in the political world at home and abroad. NIRPOA has never sought to damage the reputations or to limit the opportunities of those who have turned away from violence. However we cannot allow to go unchallenged the current prolonged attempt by former terrorists and their spokesmen to rehabilitate themselves by blackening the reputations of our members. There is not, and there can never be, any form of moral equivalence between police officers and criminals, between those who set out on a daily basis to save life and those who set out on a daily basis to take it.

The longer term objective of the propagandists is also clear. Parties to a long-running political dispute will tend to have their own narrative of the feud; and the politics of Northern Ireland (or indeed of the island of Ireland) is no exception. But it is apparent that republican propagandists are desperate to ensure that their narrative should predominate. They are therefore using all their political muscle to skew the work of the relevant institutions in Northern Ireland in order to create a false narrative in which the squalid murders and other atrocities of the period 1969 to 1998 become dressed up as a “conflict” between the state and its citizens, with members of the various loyalist and republican murder gangs described as “combatants”. (The majority of the victims of these “combatants” were, of course, what every independent commentator would describe as civilians, even if they were to accept the idea that these murders amounted to some perverted form of “combat”).


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The determination of the propagandists should not be underestimated. A monolithic and intolerant edifice of lies is being created. Naturally they expect people like us to object and they have their political strategies to silence us. But they are no less ruthless with their own people. When someone who is perceived as “theirs” dares to voice an opinion which is not “on message” that person is branded as psychologically damaged or malevolent. (O’Rawe, McIntyre, Hughes, Price and O’Callaghan are a few examples).

The importance of the narrative was recognised by George Orwell: “Who controls the past controls the future: who controls the present controls the past.”1 And he seems to have anticipated the efforts of a number of political representatives and spokesmen for their affiliated pressure groups here over the last few years: “Political language is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.”2

As part of this process a number of these propagandists have attempted to foster the myth of “collusion”. This is made easier by the obvious political collusion between representatives of Her Majesty’s Government (HMG) and republicans. Institutions which were designed in the 1990’s to increase confidence in police accountability were undermined by political agreements which were negotiated in secret at Weston Park and St Andrews. Our government felt able to distance itself from the conduct of its predecessors, clearly believing that it was better to seek to guarantee the continuation of the peace process in the future than to demonstrate integrity in relation to dealing with the past. Whatever the merits of the politics, justice was sacrificed.

A senior British police officer was permitted to spend nearly twenty years, and more resources than were ever devoted to solving the murders of police officers in Northern Ireland, in order to uncover supposed collusion; the result was that the Director of Public Prosecutions (DPP) found no evidence in Stevens’ lengthy reports which would justify the prosecution of any police officer for any criminal offence which might be thought to be in some way demonstrative of collusion. A short essay by a NIRPOA member on collusion as alleged (without any evidence) by the first Police Ombudsman in 2007 is attached at Appendix III for information.3

Dealing with the Past – the Institutions and their Current Shortcomings

Police Ombudsman for Northern Ireland (PONI)

Those of us who were serving in 1998 welcomed the proposals of Dr Maurice Hayes for a mechanism whereby complaints against the police would be investigated by a body which would be completely independent of the Chief Constable. Whatever reservations we might have had about its possible effectiveness it was a political inevitability because of the widespread hope that it would increase public confidence in the police complaints process. The

1 George Orwell, “1984”, 19492 George Orwell, “Shooting an Elephant”, 19503 See also “How the Police Ombudsman Got It Wrong!” published by NIRPOA March 2007.


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development would be in the vanguard of such reforms in other parts of the United Kingdom (UK).

Unfortunately the project failed. Inappropriate appointments were made. Two of the post-holders have sought to broaden both the remit and the powers of the office way beyond what was originally intended. In this they have been abetted by those politicians and pressure groups who seek to denigrate the RUCGC and those politicians who have failed to understand, or have colluded in, the agenda of such groups. Many of the senior investigators lacked professionalism, training and experience, leading to a total failure to understand context and, worse still, to the production of reports which were based on assumption and conjecture instead of evidence, and which exhibited confusion over the applicability of the concepts of “beyond reasonable doubt” and “on the balance of probabilities”. There appears to be a rather loose interpretation of the provisions of Regulations 5 and 6(2) of the 2001 Regulations,4 whereby the Ombudsman has not properly restricted his activities to matters in which a criminal or disciplinary offence has been committed by a serving or retired police officer. The manner in which the Police Ombudsman has both exceeded his brief and demonstrated an inability to distinguish between evidence and irrelevancies is expected to be challenged in the courts soon.

The outcome of the wrong direction which has been taken is that PONI spends time and resources in dealing with historical matters for which it is totally unequipped, when it should be concentrating on maintaining the confidence of the public in the PSNI and the present policing arrangements through a rigorous investigation of complaints relating to current policing. It has lost the confidence of our organisation through its abrogation of powers, its incompetence and its apparent difficulty with the concept of impartiality. After a “Section 62 Statement” by the first post-holder in 20075 was demolished by an evidence-based rebuttal issued by NIRPOA, the response was a hysterical series of threats by the then Secretary of State and the then Chief Constable against our members for daring to point out the emperor’s absence of clothes and a bland statement by the post-holder that her report “stood”. There was no attempt to engage with us in relation to evidence and the merits or otherwise of the report. When the second post-holder was challenged by an independent non-statutory republican pressure group he hurriedly altered his report in accordance with their wishes – but this was not sufficient to appease them and he was hounded out of office. The third post-holder recently issued another report which was totally flawed and which was rebutted in a carefully argued response by NIRPOA.6 Again the only comment by the Police Ombudsman was that his report “stood”.

This institution is not fit for purpose and should be reverted to the role for which it was originally intended. And yet it is seeking even further powers, some of which defy belief in a country which supposedly abides by the provisions of the European Convention on Human Rights (ECHR). A copy of our views on the proposed additional powers is attached at Appendix IV. Amazingly there has been a last-

4 Royal Ulster Constabulary (Complaints etc) Regulations, 20015 The so-called “Operation Ballast” Statement was published, without any notice to NIRPOA, in breach of “Salmon” principles, in January 2007: the document cited at footnote 3 above was our response.6 The case of the “Good Neighbour Bombing”: NIRPOA’s detailed rebuttal of the Ombudsman’s methodology and findings was published in October 2013.


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minute attempt to add still further powers to this body. Our views on this latest development are attached at Appendix V.

Public Inquiries (PIs)

Our members have participated as witnesses in a number of public inquiries (including Nelson and Wright). Whatever our views might be on the need for such inquiries in the first place, on the enormous cost during a period of supposed austerity and on the weight which seems to have been accorded (or rather, not accorded) to our members’ evidence in reaching the outcomes, there are more general issues in relation to the welfare of our members.

Retired police officers generally retain a sense of civic duty and will seek to help these inquiries. But there are limits to the extent to which our members are prepared to give up their time continually, to be at the beck and call of salaried officials when they themselves are supposed to be enjoying a well-earned retirement. It is not simply a matter of turning up for a day or so to give evidence. Some members have been obliged to give up significant periods of time in preparation and have wasted time standing by for appearances which are constantly delayed.

The length of time since the events and the age of the officers may also give rise to stress. The events which the members are being asked to recall may also re-awaken traumatic memories, although this is more frequently the case in relation to inquests and HET matters, which are addressed below.

Historical Enquiries Team (HET)

Our experience of the work of the HET has been mixed. We believe that in their efforts to bring information and even possibly some comfort to the families of members of the security forces in relation to the death of loved ones they have enjoyed some success. We believe that this is also true in relation to many members of the public from all parts of the community; but we cannot give evidence of that and we accept that others may take a different view. Certainly the HET has been the subject of significant criticism from elements with whom we would have no sympathy.

However we have also had serious concerns about the work of the HET, most notably in relation to the lack of training, preparation and experience of their staff leading to an absence of contextualisation and understanding of the realities of the times about which they are writing. Further we have had cause to challenge inappropriate leaking or consultation prior to publication of reports, a failure to alert the families of deceased officers or living members to criticisms (as per the “Salmon” principles) and a disproportionate allocation of resources and effort in pursuing matters in which they believe that there may be an opportunity to criticise the RUCGC. The HET has also shared with PONI a regrettable tendency to draw conclusions from conjecture rather than from evidence. A catalogue of some of our concerns in these regards was forwarded by way of a letter to Her Majesty’s Inspector of Constabulary (HMIC), a copy of which is attached at Appendix VI.


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The outcome was an inspection which produced findings which led, inter alia, to the early departure of the head of the unit. It almost goes without saying that the discussions in the Policing Board and in the media concerning the alleged defects of the HET related entirely to the criticisms which had been levied by the non-statutory republican pressure groups and not at all to the legitimate concerns which had been raised by NIRPOA in relation to lack of impartiality and rigour.

Inquests

The inquest system was never designed to deal with what is now being asked of it. Many of the so-called “contentious inquests” relate to events which took place thirty or more years ago. Our members, many of whom are elderly and some of whom are frail, are being asked to come out of retirement in order to face a barrage of hostile questions. They frequently have no recourse to adequate personal documents or official material to assist with their recall or with the reconstruction of events. A few (including one who investigated many of the so-called “controversial” killings) will be repeatedly expected to devote weeks (if not months) of their “retirement” to preparation for, and appearance at, these inquests. They are likely to be continually exposed to the trauma of revisiting events which they should have left far behind.

It is not through any fault of our members that these matters have still not been brought to inquest. Whether through the obstruction of the families (and organisations) of the deceased, the endless prevarication of the Coroner’s Office or through the perceived political expediency of those in positions of authority, our members are now faced with giving evidence about matters the memory of which, for most of them, will have long been eclipsed by many subsequent traumatic incidents. Nor do we expect to see very many terrorists associated with the incidents under examination appearing in public to account for their actions or that of their deceased associates.

The current proposals raise significant issues in relation to the rights under the ECHR of our members, specifically Article 2, the right to life, and Article 8, the right to a private and family life. In circumstances where concealment of identity will be, at the very least, problematic, our members will be expected to appear when directed and to answer all questions to the best of their ability in an open forum. Many of those present at these inquests will be members of criminal organisations or their fellow travellers. There is bound to be significant press interest, giving rise to further potential danger to our members and unwarranted impact on the private lives of their families.

It is clear from our experience of criminal trials over a long period, as well as of recent public inquiries, that terrorist organisations seek to use such public hearings as a vehicle not only for discrediting the security forces but also, crucially, for exposing secret methodology. It is expected that the forthcoming inquests will see further efforts to pursue the “jigsaw” strategy, whereby life-saving methodology employed by the security forces will be exposed, little by little, to criminal scrutiny. This cannot serve the interests of the people and the security forces of Northern Ireland, whose problems are not yet fully resolved; nor can it be reassuring for those who are charged with protecting the rest of the UK from the enormous threat


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which continues to confront it from other sources. The UK and her allies abroad still use many techniques which are similar in principle to those which the pressure groups are seeking to expose.

A new tactic of the pressure groups appears to be emerging, namely to seek to “profile” police officers who may appear in more than one inquest. It is likely that a number of retired police officers will be involved in more than one inquest since the teams which were deployed to deal with the heavily-armed and ruthless murder gangs needed to be trained to a specialist level in order to protect their own lives and those of the public. The implication which the pressure groups are seeking to develop is that the involvement of such officers demonstrates some sort of “shoot to kill” policy on the part of the police or HMG. Although such allegations are manifest nonsense (the security forces were responsible for only 10% of all deaths during the “Troubles” and the RUCGC for only a small part of that 10%; and 99% of all such operations launched by the specialist RUCGC teams resulted in arrests without any fatalities) nevertheless they are difficult to defend in the multiple inquest format.

It should be noted that after two inquest juries returned (unsurprising) verdicts that the security forces had been justified in taking life in “controversial deaths” cases the enthusiasm of one of the principle non-statutory republican pressure groups for the jury system waned significantly. Their determination to impose on society a false narrative of our past remains undiminished.

Whilst we should perhaps seek to avoid putting a price on “justice”, there is also the question of cost. After the debacle of Saville7 can we really afford another 37 public inquires, albeit on a smaller scale – for that is certainly what we will have under the present arrangements. Any outcome which does not suit the agenda of the propagandists is likely to be taken to judicial review – and never at their own expense. As we close schools and hospitals and seek to address the issue of public sector wages and pensions and youth unemployment, it may be difficult to justify yet another bonanza for lawyers.

In our view inquests under the present arrangements are not likely to serve the interests of justice. We offer an alternative proposal for meeting the Article 2 obligation to examine all deaths for which the state may need to be held to account in our recommendations below.

Criminal Prosecutions

As retired police officers we believe that those who are suspected of criminal offences should be thoroughly investigated and, where the evidence supports such a course of action, they should be prosecuted. This applies as much to police officers as it does to those who set out to murder police officers. We seek no special treatment for any of our former colleagues who may have committed crimes. Indeed those police officers who brought shame on the RUCGC through their criminal conduct were themselves exposed and investigated by the RUCGC, who provided the evidence which secured their convictions.

7 The “Bloody Sunday Inquiry”: those who have estimated costs in excess of £200M have not even included the costs to the British Army of travel, accommodation etc, let alone the “opportunity costs”.


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There are of course numerous and serious practical and legal difficulties involved in mounting a successful investigation and prosecution of matters which took place long ago. Witness evidence and forensic evidence are problematic; even admissions may be of dubious merit after such a lapse of time. The lawyers would doubtless have something to say about the Article 6 (ECHR) issues in relation to the right to a fair trial and abuse of process. The provisions of the GFA in relation to sentencing may also make such efforts a bit pointless in the view of some. Nevertheless we believe that a proper criminal justice system and a rule of law culture require that crimes do not cease to matter simply because they took place long ago. The current wave of prosecutions in relation to alleged “historical” sexual offences in England and recent prosecutions for murder and rape which are based on new techniques in relation to DNA suggest that as far as “ordinary” crime is concerned there is no recognised statute of limitations for serious offences.

Civil Actions in the Courts

It is not the role of NIRPOA to seek to inhibit the access of citizens to civil redress through the courts. We merely point out that it seems likely to us that this avenue may be one which will feature in future strands of the republican (and perhaps also loyalist) strategy to seek to blame the state for our past and to seek significant financial compensation for alleged ills.

Some Proposals from Others

Amnesty

The concept of an amnesty for criminal offences is not one which sits comfortably with the culture of police officers, who have been trained to pursue offenders, however remote in time their offences might be. The same attitude may be found among retired police officers. We accept that any form of amnesty would be a political decision and that politicians in coming to a decision would have to take into account wider considerations of public interest.

Nevertheless we believe that amnesties send inappropriate signals. They may encourage criminals to believe that if they dress their criminality up in some sort of “cause” they may expect leniency in respect of their murders when the political situation changes. This cannot be healthy for society. If clemency is to be shown then the correct place for this is in the courts. Of course judges may take a view on this; but politicians could implement what would in effect be a form of amnesty by restricting sentencing powers in relation to specified matters.

As former police officers we would also be concerned about the lost opportunities for verification of any admissions which might be made and for acquiring forensic material and intelligence or information which could assist in solving other outstanding cases.

As alluded to earlier, we seek no amnesty for any of our colleagues who may have committed criminal offences, whether in the course of their duties or otherwise.


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Truth Recovery Commission

Various suggestions have been made in relation to some form of commission which might be tasked to recover the “truth”. We have a number of objections to this.

Firstly, similar institutions have been created for countries which have experienced completely different problems. Whatever may have been the political opinions of those who engaged in terrorist activity in the United Kingdom, it must be emphasised that the UK is and was a functioning democracy, with recognised voting rights, an open criminal justice and judicial system, freedom of association and a free press.

Secondly, in UK the overwhelming majority of deaths took place at the hands of terrorist organisations, with state institutions accounting for only 10% of all such deaths. Statistics concerning the “Troubles” are widely available and have long been in the public domain. Our government even saw fit to provide a wealth of such statistical information to the 9th Circuit Court in San Francisco in the United States of America (USA) during extradition proceedings in the 1990’s.

Thirdly, we have regularly argued in relation to public inquiries, inquests and so on that it is only the state organisations, including the notoriously bureaucratic police, who will ever bring documentation to any commission of inquiry. We have further argued that terrorists will simply not tell the truth. This is no longer a matter of supposition or polemic: it has already been demonstrated by the absence of candour of such people even with the prospect of amnesty.8

Such commissions are often referred to as “Truth and Reconciliation Commissions”. This can sometimes produce the rather trite-sounding response that truth may be incompatible with reconciliation. Trite it may be; but there is much that would come out of such a process that could indeed be highly damaging – not to our members, but to some of our current crop of politicians as well as to local communities in which the true role of some of their members has so far remained secret.

Creation of an Historical Archive

A former Secretary of State for Northern Ireland (SOSNI)9 was among a number of people who have mooted the idea of transferring responsibility for establishing an agreed record of the past from lawyers, politicians and other polemicists to professional historians. More recently this idea has been developed by a number of academics, and in particular by a cross-community group styling itself “Arkiv”. We understand that this group has already made a submission to the Panel of Parties in the Northern Ireland Executive.10

8 For example at the Bloody Sunday Inquiry9 Rt Hon Owen Paterson, MP10 Arkiv submission dated 25 October 2013


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We believe that, because of our history over a long period, it is unlikely that any truly agreed narrative can be created. Factions will always tend to use their own corrupted version of “history” for their own purposes – as ammunition in political debate and of course as a means of establishing and maintaining control in the communities in which they operate. This in turn gives further leverage in political negotiations. Nevertheless we would welcome an attempt by a group of properly qualified academics, from differing backgrounds and acting with integrity and academic rigour, to establish an account of the past which, whilst doubtless not suiting all, would at least find some resonance with the majority of reasonable people. It might also provide a first point of reference for outsiders who have an interest in what really took place here.

We therefore believe that this proposal has significant merit.

Some Recommendations from NIRPOA

PONI

The structure and function of the office of PONI should be reverted to what was originally intended. It is intolerable that a body should act both as investigator and adjudicator in its own inquiries, that it should be entitled to make libellous pronouncements without sanction and that there is no mechanism by which it can be challenged or held to account. This is a body which has powers equivalent to those of the police to arrest, detain, interview and recommend persons for prosecution, to search property and seize evidential material and to use intrusive powers under the provisions of the Regulation of Investigatory Powers Act (RIPA). It is inconceivable that any other such body in any supposedly-ECHR compliant state should have no independent complaints mechanism.

Furthermore, it was originally envisaged that the post-holder would be a figure of high judicial office, not a law lecturer, retired police officer or business consultant. It is little wonder that the “findings” of PONI have established such a paucity of credibility. At the very least the reports and statements of the office should be subjected to a thorough examination and assessment by an independent, qualified and authoritative legal mind prior to implementation or publication in order to quality assure the product.

HET

NIRPOA is not alone in identifying a number of the significant shortcomings of this organisation. Some of these shortcomings can be addressed by training. In our view there remains a serious issue in relation to prioritisation in the allocation of resources for historical inquiries. The leadership needs to be advised to avoid the tendency to act as if it were the maidservant of non-statutory republican (or indeed loyalist) pressure groups.


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It is understood that the future of HET is in any case under review. With the development of the Victims and Survivors Service it may well be felt that there is no further need for the HET.

Inquests

Various estimates have been offered as to how long it might take to deal with all the “controversial” inquests which remain outstanding, but at the present rate it seems likely that the process will take something in the order of twenty years. It is difficult to reconcile this with the ideals of political progress and building reconciliation.

NIRPOA has proposed that all these inquests should be rolled into one inquiry. Although we are opposed in principle to any further public inquiries, this one inquiry may be necessary in order to discharge the UK’s obligations under Article 2 in relation to full and open investigations into relevant deaths. It would also represent a marked improvement (were the panel to exercise appropriate discipline) in terms of the timeliness of such inquiry.

We believe that such a process would have the added advantage of allowing proper contextualisation, for example in relation to the dangers which existed at the time, the options for addressing them and the need for specialist officers (and soldiers) to be deployed. A more balanced view of workloads and record-keeping practices might thereby be established. It would also allow the panel properly to understand aspects of secret security force methodology, using closed sessions where appropriate. The panel would, as part of their remit, become aware of the vast number of similar operations which did not result in any deaths.

There should be no sentimental concern about abandoning the ancient laws which established the coronial system. The Coroner’s Court system was amended easily and ruthlessly enough in order to expand its remit in terms of process and findings when it suited HMG and the republican negotiators. We say that the system could simply be suspended in favour of a more effective mechanism to deal with these particular circumstances and then re-instated if need be.

Victims

The definition of victims has caused some controversy. In the wider arena this is a political matter for others to decide, although we believe the current definition to be unsatisfactory and ill thought-through. In relation to our own members it is important to stress that we do not accept that those who lost their lives or were injured while seeking to protect the community in disciplined organisations and under the law should be treated (except in medical matters) in the same way as those who lost their lives or were injured whilst carrying out criminal activity. “Parity of esteem” is a concept which may be applied to people and communities with different backgrounds and beliefs in a range of contexts; it cannot be extended to allow a moral equivalence between those who set out to commit dastardly offences and those who were their victims, whether in the security forces or, as in most cases, civilians.


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Welfare of the “Police Family”

There are a number of institutions which are designed to protect the interests of the police family in terms of welfare matters. Some of these receive public funding. We appreciate the help which is given to injured officers (including those with mental problems), widows and other family members.

Referrals to the medical wing of the Police Rehabilitation and Training Trust (PRRT) increased as the work of PONI and HET began to take its toll and as the controversial inquests started to come on stream. It is important that bodies such as this can look to security of funding in the future. Although the CGP recommended assistance to parallel facilities for the local military it was silent as to the police. It is not believed that this was intended as an adverse signal but rather that the Eames-Bradley team did not believe that this was in issue. We recommend that funding for those bodies which deal with what might be termed “legacy welfare issues” in relation to the police (Police Fund, PRRT, RUCGC Foundation, and support to the bereaved and disabled) should be centrally funded so that they may not fall casualty to any future disputes arising from local politics.

Conclusion

There may have been missed opportunities to establish a programme for the future in relation to dealing with the past; or the time may not have been right. But at some point we have to move on if we are not to revert to our previous argument.

We believe that the present institutional arrangements for dealing with the past are unsatisfactory. In our view they are geared to producing processes and results which are deleterious to the interests of our members in terms of reputation, privacy, health, the right to enjoy retirement and natural justice. They are also bad for the wider community because a peace process or a political process which is based on a series of misrepresentations, half-truths and in some cases downright lies cannot, in the long term, be successful.

These processes involve potential breaches of Article 4 ECHR (prohibition on forced labour) and Article 8 ECHR (right to a private and family life) for our members. In some cases they place the UK in breach of Article 13 ECHR (independent complaints mechanism). They risk breaches for our members and indeed the wider public of Article 6 ECHR (the right to a fair trial).

Significant change is therefore needed and we have made our recommendations for some aspects of this. We hope that the present consultation, review and negotiations will not result in another missed opportunity. We do not seek political power and we recognise that, because we neither wish to disrupt the current political or peace process, nor have the ability to do so, we are easily ignored by the decision-makers. Nevertheless we hope that the merits of our arguments will be recognised and acted upon as we continue to seek justice for our members.


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Appendix I

NIRPOA Position Paper on CGP ReportContents of Paper

Section Page(s)

1 Introduction 12 Language Used in the Report 1 – 63 Retired Police Officers as “Victims” 64 Continuing Inquiries and Information Recovery 6 – 105 Case Studies 106 Conclusion 10 - 11

Introduction

The Northern Ireland Retired Police Officers’ Association (NIRPOA) represents the interests of retired members of the Royal Ulster Constabulary George Cross (RUCGC) and the Police Service of Northern Ireland (PSNI). It has some 3,000 members. Whilst individual members have a range of views on many aspects of the Report of the Consultative Group on the Past11 (“the Report”), in presenting our corporate views we will concentrate on the Report’s proposals in relation to victims and to the Legacy Commission.

Language Used in the Report

There are, however, some general points that should be made about the Report overall. The language of the Report is hardly surprising in view of the former professions of the co-chairs as clergymen12. The concept of forgiveness is very worthy and no less than we might hope for in the broader spiritual sense. There is also recognition that those to be forgiven would normally be expected to acknowledge the need for forgiveness13.

At the political level things are rather different. The Consultative Group on the Past (CGP) has produced a document which unfortunately appears to be part of the wider agenda being followed by our government (and almost certainly also the government of the Republic of Ireland) - in “collusion” with Sinn Fein - to establish the concept of “moral equivalence”. That is to say that the whole thrust of the document seems to be to draw no moral distinction between those who sought to commit murder and torture, who used assault and intimidation, who bombed buildings and destroyed economic infrastructure and those who did their duty in a law-bound, disciplined, visible public service in order to protect life and property. NIRPOA’s members were engaged in civilian policing, however difficult and even contentious that may have been. We do not accept that we were one party in a legitimate conflict between groups enjoying equal legal, ethical and moral status. 11 Report of the Consultative Group on the Past, presented to the Secretary of State for Northern Ireland, Belfast, 23 January 200912 Report, pp 162-164; the membership of the Consultative Group on the Past also contained another churchman and a theologian13 Report, pp 25, 54-55


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From the establishment of “police primacy” in 1976 our commitment was to the rule of law, not to victory in armed combat.

“Parity of esteem” should not be extended to cover this area of public life. To refer to “the oppressive presence of military and paramilitary forces”14 as if not only the effect, but also the reason for the presence of such forces, was somehow parallel or equally valid, is ridiculous and offensive; it seeks to legitimise the existence of the paramilitaries and their presence within such communities. This sort of language unfortunately sets the tone for much of the Report.

The Report refers constantly to the “conflict”15; and it offers an explanation for this choice of vocabulary16. But the Report is implicitly, and frequently explicitly, referring to the conflict between Republicanism and the State and not to the real conflict, that between good and evil in all parts of our community. The substantive “conflict” here was that between, on one side, those who wished to pursue their aspirations and objectives (or to defend their values, institutions and traditions) in civilised, lawful, and peaceful ways - and on the other, those who chose to inflict their will on others through the use of violence. This proved to be a violence which not only destroyed lives and damaged families, but also corrupted the perpetrators themselves. Such conflict existed within communities. The use of the term “killings”17, where many would use the word “murders”, is similarly indicative of this approach.

The “State” which seems so keen to accept blame for its actions is now peopled by those who will claim no personal responsibility for the events which the Report describes. That was then (and “them”) and this is now (and “us”). Current office-holders and officials appear to think that there is a good political deal to be had by allowing, and even participating in, the castigation of those who themselves have no current corporate existence. The Report does acknowledge the existence of concerns in relation to this issue, although unsurprisingly it does not examine these in depth, preferring to leave such matters to the proposed Legacy Commission18. NIRPOA’S concerns regarding the Legacy Commission are outlined below19.

Another theme running through the Report is the constant use of the word “collusion”20. It is clear that members of the CGP have listened well to the propagandists whose efforts over the last twenty years have been rewarded with a number of mud-slinging opportunities at vast public expense21; but there is no indication that any consideration whatsoever has been given to the attempts by NIRPOA to establish a credible definition of a term which has such emotive connotations here in Northern Ireland22.

14 Report, p 26; the fuller picture presented by the text on page 71 mitigates this effect to some extent, but continues to suggest moral equivalence15 Report, passim16 Report, p 5117 Report, passim18 Report, pp 68-6919 Vide sub, p 6 et seq.20 Report, passim, but see for example pp 35, 69, 125, 135, 147 etc21 For example, the Rosemary Nelson Inquiry, the Billy Wright Inquiry22 See “‘Collusion’ – Easy to Allege but Hard to Define” in “How the Ombudsman got It Wrong”, published by NIRPOA, Belfast, March 2007 and available on the NIRPOA website: www.nirpoa.org


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Instead the Report asserts that “The issue of alleged collusion has not been properly dealt with”23. But the Report makes no mention of the outcome of the lengthy and detailed consideration given by the Director of Public Prosecutions to the one million pages of evidence produced by Lord Stevens as a result of the latter’s meticulous inquiries into allegations of serious crime and misconduct24.

Unusually the Director of Public Prosecutions issued a public statement on the matter. “In relation to collusion it should be noted that whilst there is or may be conduct which may be characterised as collusion, there is no offence of collusion known to the criminal law of Northern Ireland. However, evidence of criminal conduct which could be characterised as collusion may, where there is sufficient available and admissible evidence, give rise to prosecution for certain criminal offences. In this regard, the Director, in his examination of the police investigation files, gave consideration to whether the evidence was sufficient to meet the Test for Prosecution in respect of a range of offences, including murder, conspiracy to murder, manslaughter, misfeasance in public office, firearms and documents offences.”25 The Director gave his consideration and decided that the evidence was not sufficient to meet that test.

Astonishingly, the Report, in dealing with the outcome of “Stevens III”, blithely refers to the file “leading to 98 convictions” without bothering to point out that, generally speaking, hardly any of these could be construed as having anything to do with any alleged “collusion”. Nor does the Report mention that each of the three inquiries undertaken by Lord Stevens was instigated at the request of the Chief Constable of the RUCGC of the time.

And further on the subject of “collusion” the Report appears to accept uncritically the allegations of the former Police Ombudsman for Northern Ireland in respect of her highly controversial report on the activities of the Ulster Volunteer Force in North Belfast26. This much publicised “Statement”, which was a series of unsubstantiated assertions, was comprehensively demolished by NIRPOA in their published rebuttal27. And the Security Minister publicly cleared three former senior RUCGC officers who had been subjected to unfair and cowardly criticism under the cover of “parliamentary privilege” as a direct result of the irresponsible handling of the “Ballast” inquiry and the “Statement”28.

Yet only an unchallenged repetition of the Ombudsman’s now discredited “findings” appears in the Report. There is no reference to the fact that this prolonged inquiry failed totally to persuade the Director of Public Prosecutions that there was any criminal case to answer, nor to the widespread rejection of the Ombudsman’s unfounded assertions.

23 Report, pp 35, 12424 Often referred to as “Stevens III”; see Report p 17825 Statement by the Director of Public Prosecutions for Northern Ireland in relation to decisions as to prosecution arising out of the Stevens III Investigation26 Report, pp 178-179; referring to Section 62, Police (Northern Ireland) Act, 1998 Statement by Police Ombudsman on “Operation Ballast”, Belfast, January 200727 “How the Ombudsman Got It Wrong”, published by NIRPOA, Belfast, March 200728 Hansard, 17 July 2007, Column 185W


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These defects in the Report are important because they may create an impression in the mind of the reader which would make the Report’s recommendations in relation to the “Legacy Commission” and “Justice and Information Recovery”29 appear to be more reasonable and indeed more attractive than actually they are. It is the view of NIRPOA that these recommendations require thorough scrutiny and debate and that, taken as a whole, they are not acceptable in their current form.

Retired Police Officers as “Victims”

Very many retired police officers are “victims” within the meaning of the accepted definition30. We welcome the attention which the Report pays to the interests of victims. It is noted that whilst some thought is given to the particular concerns of those who served in Her Majesty’s Forces and the Prison Service, the Report is largely silent on former members of the RUCGC and RUCR. Whilst it is not believed that this is intended in any way to be a slight, it is hoped that proper consideration will continue to be given to the needs of our members.

In particular we would draw attention to the high referral rate to the Department of Psychological Therapies within the Police Rehabilitation and Retraining Trust (PRRT). Some 250 new referrals are received each year, most of them self-referrals31. Amongst those from a profession with a reputation for a “macho” culture such figures are alarming. In some cases “story-telling” of the type alluded to in the Report32 may be therapeutic, but we would have significant concerns about the potential impact of the Legacy Commission and the recommendations in the Report concerning Information Recovery33.

Continuing Inquires and Information Recovery

We oppose many aspects of the proposals in these matters, but even the general aspirations of the CGP as articulated in the Report seem optimistic to the point of being unrealistic: “to look at overall accountability, not individual accountability; to identify areas where things went wrong and why they went wrong; to gain greater understanding”34.

We are very concerned about the proposals to compel witnesses to give evidence under oath in private, informal hearings and to make the production of documents mandatory35. And the Report appears to advocate giving the Commission authority to overrule state agencies where there may be a dispute over the supply of information36. Inquiries held in private have not always earned public confidence

29 Summarised at Report, pp 17-1930 Report, p 67, quoting Article 3, Victims and Survivors (Northern Ireland) Order 200631 Figures from PRRT bulletin, January 200932 Report, p 9733 Report, pp 125-12634 Report, p 12935 Report, p 14836 Report, p 151


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and the present proposals smack of the “Star Chamber”37; certainly the privacy and compellability aspects are difficult to reconcile with the aspirations of the CGP to make only recommendations which are Human Rights compliant38. Whilst the Report pays attention to its own interpretation of the requirements of Article 2 (the Right to Life), in our view it pays scant regard to Article 6 (the Right to a Fair Trial) and Article 8 (the Right to Privacy).

We would also have significant concerns about the creation of any additional new body with “police powers”39. The serious mistakes which were made when the Office of the Police Ombudsman for Northern Ireland was created must not be repeated. This was a body which had police powers but, contrary to all modern civilised norms and to the provisions of Article 13 of the European Convention on Human Rights (ECHR), there was absolutely no mechanism for those who had complaints against the body in relation to their treatment by it to have any redress whatsoever40. This led to severe injustices which have yet to be remedied and which must not be repeated.

Our particular concern in this matter would be the uneven burden which would be likely to fall on individuals within the community in Northern Ireland. Inquiries into deaths are likely to require the assistance of the police officer who was in charge of any investigation at the time. There are a number of retired police officers living in Northern Ireland who served for many years in the Criminal Investigation Department (CID) and were involved in, or indeed led, murder inquiries. Some were involved in over 100 such inquiries. Are such people really to be dragged out of well-earned retirement time and again to be confronted anew with the horrors of the past? Where is the right to enjoy family life under Article 8? And in many cases there is likely to be an agenda which alleges or implies that their conduct was somehow deficient. Where, after so many years and with so many advances in techniques and changes in procedures, is the right to a fair hearing?

The Report states that the purpose of such investigations would not be to blame or name individuals41, but it is hard to see how that could be avoided or to find any alternative purpose for such an investigation in the highly-charged and retributive climate of Northern Ireland’s politics. And with the prospect of “reports” being published by the Commission42 there arises the possibility of irresponsible and unaccountable behaviour such as was seen with the publication of the former Police Ombudsman’s “Ballast” Statement43.

It is agreed that the present arrangements for investigating past crimes are unsatisfactory, but the Belfast Agreement has limited the options in this area. The CGP appears to recognise that the Historical Enquiries Team (HET) has had some limited success in conveying information to relatives but that it is unlikely to solve

37 Secret courts which increased the unpopularity of the Stuart monarchy during the early 17th century (prior to the advent of ECHR!)38 Report, p 5039 Report, p 12540 Police (Northern Ireland) Act 1998 and subsequent legislation; but the lamentable oversight has still not been addressed by government41 Report, pp 129, 15242 Report, p 15243 Vide supra, p 5 and footnote 16


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many crimes, with its principle success to date resulting from a “walk-in”44. The truth is that most serious investigative resources (Police Ombudsman, HET special teams, Public Inquiries, Stevens) are today focused on scrutinising state agencies, in particular the police, in order to try to identify opportunities, if not for prosecution, then at least for criticism.

The Northern Ireland Affairs Committee (NIAC) recognised that the activity of the Public Inquiries generated by Cory’s report placed “the police and prison services under particular scrutiny”45; but the CGP appear to wish to exacerbate this problem. The statistics demonstrate that the police were responsible for fewer than 2% of the deaths due to the security situation in Northern Ireland during what the Report refers to as the “conflict”46, but the reader will struggle to find this information in the Report47. And yet who does the CGP really expect to turn up to its Commission, complete with documentary records, to deal with its individual and thematic inquiries? Does the CGP expect the terrorists or criminals (or perhaps we should say “paramilitary participants in conflict”) to parade before its Commissioner, complete with minutes of meetings of the Ulster Defence Association Brigadiers or the monthly activity reports of the Provisional Army Council? It is quite clear where the burden will once again fall – certainly not on those who set out to commit murder.

The Report does not make clear how areas for “Thematic Examination”48 might be selected, although it makes no secret of its determined agenda to keep the myth of collusion at the forefront of our minds49. There is a danger here that politically-driven pressure groups will ensure that we continue to look backwards, instead of striving to move forwards in accordance with the wishes of the people of this island as expressed in 199850.

Case Studies

One retired police officer was subject to a harrowing ordeal over a period of nearly a decade after his retirement from the police. His conduct was investigated from a criminal perspective and attempts were made to find fault in terms of the procedures which he followed in saving countless lives. In view of the facts, it was inevitable that no prosecution would follow; but he was relentlessly pursued until all possible avenues by which he might be sanctioned were utterly exhausted and he was finally “cleared”. Are we now to create a new mechanism for subjecting him to another five years of punitive, unfair and unwarranted treatment?

Another retired officer (who was subject to more than one attempt on his life) dealt with in excess of 100 murder inquiries. Since his retirement he has been pursued by the former Police Ombudsman and has assisted at Public Inquires. Is he now to be at the beck and call of some new Commissioner for the next five years of his

44 Report, pp 106-10745 Quoted in Report, p 11546 Fay, Morrissey, Smyth, Wong, “Northern Ireland’s Troubles: The Human Costs” Pluto Press, London 1999; see also http://cain.ulst.ac.uk47 Report, pp 60-6148 Report, p 13549 Vide supra, p 3 et seq. and footnote 1050 “Good Friday Agreement” 1998, “Belfast Agreement”; and subsequent referenda


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life, as he laboriously rehearses the horrific details of many of the murder scenes which he has visited?

Conclusion

For our members the suspicion must be that, with all the attempts to establish the myth of “collusion” having failed through want of evidence, it is now thought necessary to lower the threshold of proof in the hope of justifying the unjustifiable assertions of the detractors of the RUCGC. The suspicion is reinforced by an examination of the language which the Report chooses to use in relation to the role of informants51. The CGP should know that it was not “communities”, but rather terrorist organisations, that were the target of the security forces’ informant operations. Many informants saved numerous innocent lives and should in no way feel, or be made to feel by the Report, that their “self-esteem”52 is compromised or that they have anything to “admit”53. It is hard to avoid seeing a connection between the Report’s attitude to informants (and its persistent use of the word “collusion”) and the long-term Republican strategy to undermine confidence in police intelligence-gathering techniques. Recent tragic events should indicate the need for proper consideration of all the issues in relation to this important matter.

Retired police officers look forward no less than any others to genuine reconciliation within our community and we welcome the skill and devotion which has gone into the Report of the CGP. We have tried to restrict our comments to specific areas, but would note that many of the Report’s recommendations for new activity seem to us to duplicate or overlay existing structures or institutions. Similar results might be achieved with greater efficiency by providing additional support or funding to those institutions.

In many areas we are in agreement with the CGP’s recommendations; but we have felt it right to draw attention to our considerable concerns regarding (i) what we consider to be the unfortunate use of language in some areas and (ii) the very serious and deleterious implications for many of our members of the proposals in relation to continuing inquiries and truth recovery mechanisms.

MaryfieldBelfastApril 2009

51 Report, pp 71-7252 Report, p 7153 Report, p 72


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Appendix II

Extract from uncorrected record of hearing of Northern Ireland Affairs Committee – 29 April 2009

Memorandum submitted by Northern Ireland Retired Police Officers’ Association

Examination of Witnesses

Witnesses: Mr Chris Albiston and Mr Raymond White, Northern Ireland Retired Police Officers’ Association, gave evidence.Chairman: Mr Albiston and Mr White, could I thank you both for coming and welcome you. As you know, we are going to report to Parliament on the Eames-Bradley Consultative Group Report and we thought it only right to give you the opportunity to share some of your thoughts and views with us. You will have heard most of the previous session and we will of course give you the chance, as we gave the others, the opportunity of sending in any supplementary evidence. We are slightly constrained on time because there are going to be a series of votes in the House of Commons at four o’clock and the rules mean that I have to suspend the Committee at that point; I do not want you hanging around so we will finish our questions when the division bells go, which will be at four o’clock or a moment or so after or even before that. Would you like to say a word by way of introduction on your initial reaction to the report? There are two of you here but do you, in effect, speak with one voice, does your association have a collective view or are there differences between you?Mr White: We speak with one voice; we have not fallen out as yet on this issue. Thank you for the opportunity to address the Committee. Mr Albiston and I both serve on a small sub group within the Northern Ireland Retired Police Officers’ Association, an association representing some 3000 plus retired police officers. Our written submission obviously you have before the Committee and you will see that we have confined our comments to speak on issues relative to the Legacy Commission and the residual issues regarding legal processes surrounding that. We have left the care and welfare issues and recognition of victim and survivor issues to our sister organisation, the RUC George Cross Foundation, and I understand they have made a submission as well. Could I say at the outset, Chairman, our recognition for Lord Eames and Mr Bradley in relation to the work that the Consultative Group on the Past has produced. It was an enormous task that they had and every time we met with them we were met with the utmost courtesy and they listened to us and we are extremely appreciative of the work and effort that they have done.Lady Hermon: That is very nice.Chairman: Thank you for saying that.Mr White: The Committee will note also that we make our comments primarily in defence of the interests of our retired membership, so we can be somewhat selfish in terms of making our remarks and our comments. We are some ten years now into the Belfast or Good Friday Agreement and we have available to us, obviously, the cumulative effects of all the retrospective investigations and inquiries that have gone on to date, so it is within that framework that our comments have been made in the submission given, and my colleague Mr Albiston will lead in that respect.


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Chairman: Thank you very much indeed. As you focus very much on the Legacy Commission would you like to put on the record - because this is going to be a published record as you will appreciate - your thoughts on the Legacy Commission: whether it is a good idea, if it is a good idea how it is best executed, comment on timing and so on, and then I will bring in my colleagues to follow up.Mr Albiston: Thank you, Chairman. To simplify issues we were present earlier and we heard the comments on cherry picking, and we accept it is open to honourable members to cherry-pick, but on a broad base we say that we do not accept the proposals of the Eames-Bradley Report in relation to the Legacy Commission and there are a number of reasons for this which we have attempted to set out in our brief submission to this Committee. To summarise those objections, firstly we are concerned about the nature of the proposals for the Legacy Commission in respect of the remit to investigate matters in the past. Our members - that is retired members of the police in Northern Ireland - have been involved in a number of attempts to re-investigate the past, either through the re-opening of old investigations by the Police Service of Northern Ireland or through the Historical Enquiries Team or through some of the other investigations which have taken place and of course with public inquiries, three of which are still ongoing in Northern Ireland and in which our members are participating. Our view collectively is that there is an agenda operating within many of these inquiries, the purpose of which is to question at best or to denigrate at worst the work which our members undertook whilst they were serving police officers, and that these inquiries and these mechanisms are in fact vehicles for this form of unfair criticism. Our concern about the Legacy Commission is that with inquiries such as the Stevens Inquiry and so on failing to meet the test which the Director of Public Prosecutions has set for prosecuting people for criminal offences, this does not satisfy the political agenda and that this Legacy Commission may be used as a vehicle for achieving the same objective, criticising retired police officers but doing so by using a lower threshold of evidence. That would be one of our principal concerns, when we look at, for example, the mechanisms involving secret courts, different approaches to evidence, the requirement on people to attend and produce documents. We do not see any likelihood of criminals, gangsters, terrorists, paramilitaries, whatever term you like to give, attending with documents to articulate their position and their mechanisms in the past. We see these machines as being purely directed against retired police officers and, therefore, we feel that the Legacy Commission proposals as set out in the present document will act against the interests of our members.Chairman: You feel bruised and feel that you will be further bruised by the establishment of such a body?Mr Albiston: There are many people who feel exactly that, yes.Chairman: What about the continuation of the status quo; you would be comfortable if HET remained and the Ombudsman’s investigative powers and historical section remained; you would be happy with that would you?Mr Albiston: We could articulate some detailed views on the precise way in which we think enquiries should be undertaken, but in principle, as I think honourable members would expect of retired police officers, we believe that allegations of crime should be investigated by the police. We believe that there may be a tension between the interests of justice with a capital J and the practicalities of politics and moving forward, and we recognise that; we believe that that is one of the difficult areas into which the Eames-Bradley group ran. We are not sure that they have


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taken the right path out of that difficulty; we do not claim to have a monopoly of wisdom in that, but as police officers we believe that if crimes took place, which they did, then police officers are the people to investigate those crimes.Chairman: You heard the evidence given a few minutes ago by the commissioners. Have you actually had the opportunity as an association to talk to the commissioners and, if you have not, would you welcome such an opportunity?Mr Albiston: I am not aware that any discussions have taken place but both of us certainly know one of the previous witnesses fairly well and have spoken to him fairly regularly over the years. I would say that it would not be right to say that our organisation has spoken, as an organisation, to Mr McAllister’s organisation.Chairman: Would you like the opportunity to do so?Mr Albiston: I am sure we would welcome that opportunity.Chairman: Because if we are going to bring people together there has to be, as I see it, a series of dialogues, and that is one obvious one that perhaps we could help initiate. You would welcome that?Mr White: We are certainly as an organisation open for dialogue. We hear the warm and embracive sentiments that are expressed in relation to HET and the investigation of old offences, but we struggle to find as it were evidence of what actually has been achieved short of some comfort being brought to some families in relation to personal questions that they might have to ask. When our membership looks to see, and as the Eames-Bradley Report points out, 60% of the murders that occurred in the Province were carried out by Republican organisations, 30% by Loyalists and 10% by Her Majesty’s Forces, of which less than 2% are laid at the door of the police service. When we look to see the work that the HET has done at this moment in time in relation to making people amenable to the courts for old offences, I find it very hard to find any cases that are actually being run at this moment in time. Certainly HET will point to one case and that is the 2001 case that actually sits outside its normal remit which refers to the date in April 1998 which was supposed to be its investigative period. They point to that as an illustration of some work being done in that area, but I heard one of the Victims Commissioners make mention of the fact that they would wish to see the remit of HET expanded; we would ask in actual fact that the recommendation that this Committee made this time back, that the Northern Ireland Office conduct a review - which it has very neatly sidestepped on such things as Eames-Bradley reported - that that now as it were be put into place and that we have for the first time something that we can use to illustrate to our members what we call the cost benefit analysis of being involved with HET. We are finding that it has a cost to our membership that does not appear to manifest itself in any output from HET.Chairman: You would like this Committee to pick up where we left off in that previous report which we deliberately did leave off because of Eames-Bradley and not wishing to prevent that, but you would now like us to go back there ---Mr White: We would welcome that because, like yourselves and a lot of other people, expected within Eames-Bradley a fairly detailed analysis of the work that was actually ongoing and why it was that HET would experience considerable difficulties in making people amenable to the courts. There is a very brief reference to evidence issues and things of that nature, but as you, Chairman, will appreciate it starts with the very nature of murder itself in relation to a terrorist act. It is not comparable to a domestic murder.Chairman: No.


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Mr White: There are major distinctions. It flows right through not only the investigative process but into the decisions of the CPS in terms of do we prosecute, is it now in the public interest, is there an abuse of process here? That flows over into the courts process as well, so the older the cases get there are very real difficulties of investigation, but when you map onto that the signals the government has already set out in terms of the early release of prisoners as part of the Good Friday Agreement; when you map on to it the Sentence Review Commissioners’ remit in the sense that no matter how heinous the offence, no matter what the judiciary says about it, two years is all that you are going to spend the big question in our mind is what constitutes justice out of a system that has that amount of what you call political interference in it? This is where we would like the Committee to pass recommendation in respect of HET to be picked up on, so that we have an in depth, very definitive and independent analysis of what actually is set out to be achieved and how realistic is that, because the people of Northern Ireland want that.Chairman: We note your challenge and we shall obviously reflect on that. Could I bring in Dr McDonnell?Dr McDonnell: Thank you very much, Chairman. I just wanted to touch base if I might on some of the recognition payments. How do you feel about those or were you happy that the Secretary of State removed those?Mr White: The feelings of our membership certainly reflected a lot of what was said in the press in that people found it extremely difficult to come to terms with a payment to an individual’s family who had deliberately set out to kill another individual, who had watched that individual’s funeral as it were have all the paramilitary trappings, have all his hooded associates alongside his coffin, be they as it were Loyalist or Republican and then be asked to accept that the payment that they were going to receive was reflective in the same pain and suffering as the family of the deceased paramilitary. They just found it extremely hard to come to terms with and that is where basically we stand on it. We did not see the payment as it were as being something that was acceptable in that as it were definition of victim.Dr McDonnell: Others may wish to pick up on that, but there is a second point I want to make quickly. I feel very strongly myself about the mental health support that victims received and I am sure that many of your members were in the category of being not just traumatised physically but traumatised mentally and scarred mentally. In your opinion and the opinion of your organisation did the health service pick that up, do they get adequate support in terms of mental health support in terms of dealing with the scars that they live with?Mr White: We were very fortunate in respect of the Patten Agreement; it recognised the heavy psychological impact that the four decades of the Troubles had on our membership and as a consequence of that the PRRT was established at Maryfield. They have ten psychologists in employment, seven of which as it were are looking after the interests of serving and retired police officers. Some 250 new cases are still presenting themselves on an annual basis to those people, so you can estimate for yourself the numbers of ongoing new cases - that is not people who have been treated and put back into care of the national health service, this is 250 new presentations each year in respect of their services. Certainly we were very grateful as an organisation that that recognition was there. The military side, dealing with officers coming back from Iraq and Afghanistan, have been looking to see what sort of services are in place and how effective they


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have been and I understand, Chairman, you may be visiting at some stage with PRRT.Chairman: Indeed.Dr McDonnell: Is that service open beyond former members of the RUC? Is it open to the families of former members and is it reasonably accessible to the wider community?Mr White: The only people who are excluded as far as we understand - and I would not hold myself out to be an expert on it - are part-time members of the RUC Reserve seen to be outside the framework as it is at the moment, but serving officers, retired officers and the immediate families of retired officers are eligible for treatment within the psychological service.Chairman: This is perhaps a good point to ask you one question before handing over to Lady Hermon. This Committee has often made the point that victims are not just the bereaved; many people suffered during the Troubles who did not lose a loved one but perhaps had one mutilated, all sorts of terrible things happened within families. I was heartened that the Victims Commissioners made reference to that this afternoon; would you go along with that wider definition?Mr Albiston: We have been very fortunate, Chairman, as my colleague Mr White has said in the facilities which have been available to us, particularly in the last ten years. It will be for the Committee to see when they visit PRRT and not for me to speak from any position of expertise, but it would be fair to say that they have seen a large number of clients and they have been able to adopt a fairly generous and broad brush approach within the limits of the legislation which, as Mr White said, excluded the part-time reserve. What you will find when you speak to them is a generosity of spirit, perhaps not of resource because resource is always limited, but an expertise has been developed there and there is almost certainly from my contact with them a willingness to share that expertise with other organisations. In much the same way as Belfast developed a reputation for dealing with traumatic injury I think now the PRRT is developing a reputation for dealing with these post-traumatic injuries.Chairman: I take that to be a yes to my question about the wider nature of victims, the wider nature of the definition. Lady Hermon.Lady Hermon: Just staying with the PRRT for a moment could I just ask you to comment on whether in fact you were surprised in fact or disappointed that the Consultative Group on the Past did not seem to mention the PRRT at any stage or even the health care problems of retired police officers. Did that omission surprise you?Mr White: It did not really mention the police service at all in any great comment. Certainly the work of PRRT would have been brought to the attention of the Eames-Bradley group and they would have been made fully aware of that. Certainly it was just one of the issues that we noted in relation to the report, that we had not had much in the way of a mention. We would not wish to see it interpreted that somehow or other all our needs were met and therefore we were outwith any recommendations that they were making.Mr Albiston: There was a Freudian slip in the drafting, if I may apologise in advance, where paragraph 14 of our submission suggests that the silence in the Eames-Bradley Report was not intended as a slight and an “e” has appeared in the word -sleight - which is not consist with the Oxford Dictionary’s interpretation of the two words. I do not think this was meant to be a sleight of hand, nor do I think it was meant to be an insult to the PRRT or to the RUC or to ex-members. What we


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hope it is not is an indication of any thinking in official circles that the police have got enough, we can forget about them and concentrate on other people. We welcome the attention which the report gives to the needs of ex-members of Her Majesty’s Forces, for example, and we see this as being additional to the provision which has already been made. We do not expect it to be considered to be a substitute for or instead of the existing provision,Lady Hermon: Just following on a little bit from that could we just come back to the Legacy Commission? Could you describe to the Committee please what you would expect to be the impact on retired police officers and perhaps say a little bit about the impact that HET has already had, the Police Ombudsman’s investigations have already had and that other inquiries have already had on the psychological welfare of retired police officers and indeed the morale of retired police officers.Mr White: This is certainly one of the key concerns that I mentioned at the beginning to Sir Patrick. As I said, 250 new cases present themselves each year to PRRT. PRRT will tell us that a proportion of those are triggered by requests from the Police Ombudsman’s Office, from public inquiries and from requests from HET to assist with old investigations. If you can imagine your average detective serves maybe for 20 years in the CID going from detective constable to perhaps detective superintendent. Attending six murders a year - which would not be a big number of murders - that is 120 murders potentially that he or she could be required to assist HET with in terms of its review. Even if they only revisit 50% of those it is still a considerable number. It is not a paper exercise as far as our members are concerned; it takes them back to dark corners of their past that they do not wish to visit again. It may have been 20 years ago and they have come to some degree to terms with it, but if you spend two or three hours on a reinvestigation and you are walking through inquest photographs and investigative processes, that is real live time memory recall as far as those officers are concerned.Lady Hermon: Yes.Mr White: And they are asking for what benefit and for what purpose. They are not seeing prosecutions being pursued or people being brought before the courts, but there is this psychological damage trail that is now beginning to emerge through the figures of the HET. I have no doubt that the Chairman of the Committee will follow up on that and knows a much better place for that, but it is a balancing effect and it is the intrusion. The other side is that we have now ten years of retrospective investigation, from public inquiries to controversial inquests, to HET inquiries, the Police Ombudsman inquiries and a disproportionately small number of our officers who either served in Special Branch or served in CID are now almost on call, as it were, as unpaid public servants to be at the beck and call of whoever wishes to revisit the past. This is our fear, that in respect of the Legacy Commission this is yet another imposition. I can only use myself as an example. I am seven years now approaching retirement; I have not had a year in retirement that I have not had a letter arriving either from a public inquiry or the Police Ombudsman’s Office in relation to, as it were, “Can you assist? Or we wish to interview you.” It is not just a matter, Chairman, of an hour. At least six weeks out of my life was taken away in relation to the Rosemary Nelson inquiry, between attending to make statements, receiving documentation, meeting with my own legal advisers, making further statements and then attending the hearing itself. That is now due to be repeated for me in relation to the Hamill inquiry. I am only a small


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representative - I probably do not even represent in respect of what the CID officer might be required to go through. It is this intrusion on us in an Article 8 sense into our privacy: when do retired police officers actually get retired in the same fashion as other members of the public?Chairman: Would you like there to be an age at which a police officer cannot be summoned to give evidence?Mr White: You are arriving at that age with some of us now, where early Alzheimer’s is setting in!Chairman: No, it is a serious question: do you think there ought to be an age after which a retired police officer cannot be obliged to give evidence? Do you think that would be a realistic approach?Mr Albiston: Our position is that if there is a suggestion that a police officer has been involved in criminal conduct whilst he was a police officer there should be no hiding place for that person and that any body which is legitimately charged with investigating crime should be able to deal with that retired police officer in the same way that they can deal with any other suspect for a criminal offence. I am absolutely and unequivocal on that - and no age limit, no medical excuses, nothing. But if you are taking retired police officers and asking them to help you by explaining procedures that they may have been involved in 15 years ago and you are taking up their time - and it is not just Article 6 about the fair trial and Article 8 about the right to privacy, what about Article 4 of the European Convention which prohibits forced labour? This man was taken away for six weeks and I am aware of the cancelled holidays and all the rest of it and I think this is an abuse of the powers that have been given to public inquiries and other bodies, and we very much fear that the same thing will happen with the Legacy Commission. We are particularly concerned - we put it in our submission but we have not mentioned it today and I do not know whether honourable Members are going to come to this - the proposals for the Legacy Commission make no reference to any form of appeal mechanism, accountability or control. We went through and we are still going through a horrific experience at the hands of the Police Ombudsman’s Office partly because, completely contrary to the clear provisions of Article 13 of the European Convention, when the Government established the Ombudsman’s Office no mechanism was put in place for anybody to challenge the conduct of the Police Ombudsman’s Office for their handling under the Office. There is a mechanism for addressing issues of maladministration, which is common with other parts of the Ombudsman structure in the UK, but the Ombudsman’s Office has police powers; it has powers to arrest, search, detain, interrogate and recommend for prosecution. Any other body in the UK which has those powers would have a complaints system. There is no complaints system for the Ombudsman’s Office; and we fear that the same thing might happen with the Legacy Commission.Stephen Pound: On that point, Chairman - and I am very grateful, you have certainly fleshed out the statement you made in your written submission when you talked about retired police officers being dragged from their well earned retirement - you paint a nightmare picture here where if someone was getting confused with age, which does happen to us, and they give a statement which contradicts an earlier statement then that would then open up an entirely new range of inquiry which would then have knock-on effects in other ones. I think we need to get that on the record. What I want to ask you is about the sheer practicalities of it. You are formerly Metropolitan Police and the only one of these that I have ever been involved in involved the MPS and we found that all the retired officers live in either


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Spain or Florida – none of them were living in Southall. The fact remains that they were out of the country, they were not subject to subpoena and a number of them actually returned to give evidence at their own expense. How does the mechanism work? Is this a voluntary process? Are you subpoenaed, are you summoned, and how does it actually work in practical terms?Mr White: If it is the Ombudsman’s Office then I can either be a witness or a suspect, so I can be interviewed under PACE as a voluntary attendee, in which case I get legal assistance in that respect. If I am attending in respect of a public inquiry the only aspect on which I am paid, as it were, mileage allowance is in respect of my attendance to make a statement to one of the inquiry solicitors. All other contact that I have with my own solicitor in the collecting of papers and discussing issues with him are all paid at my expense. My time, as I say, when I add it all up in terms of reading all the papers that have been served on me, in terms of correcting statements that have been drafted and given back to me and in terms of all the work you normally do in terms of appearances is unpaid; it is borne by myself; it is complained of by my wife to a great extent in terms of the time loss. And in respect of the Nelson inquiry I was listed for appearance on no less than four occasions, starting in March, put back to May, put back to September and I finally appeared in December. So my entire year was lost to myself in terms of, “When am I going to appear?” The same thing now has happened in respect of Hamill - I am into my third adjournment and I do not know when the next one will be. So this is the mechanism; we are treated, as it were, as some sort of public object that is still tied somehow or other to the force.Chairman: In the context of today’s session you are fearful that the establishment of a Legacy Commission would compound those problems?Mr White: Exactly because it has compellability powers which no doubt will be backed up by a High Court subpoena if we did not appear.Mr Albiston: Absolutely, and to complete the answer to your question about age limits, Chairman, I spoke about retired officers who are suspected of criminal offences. If we go on to talk about retired officers of whom it is believed they may be able to assist with various types of inquiry our submission would be that that should be on a purely voluntary basis. We think - and from reading the letters columns in newspapers and listening to the television debates with the vox populi and so on - that there is a perception that retired police officers are under some sort of moral obligation to give of their time because they have agreeable pensions and this sort of thing. I think it would be right to put on the record that all police pensions have been paid for through 11% contribution during the service of the police officer.Stephen Pound: Not disputed.Mr Albiston: But that is not to say that retired police officers such as Mr White and myself would be therefore, ipso facto, unwilling to give of our time; we would not. There are many occasions on which we would be quite willing to give up our time and we have both been at public inquiries and given what we believe to be help to those inquiries.Chairman: You have made this point with graphic clarity but we have this report before us from Eames-Bradley and you yourselves have generously paid tribute to the courtesy with which you were treated and we would certainly concur with that; we believe that the conduct of Eames-Bradley was impeccable - that is not to say that we are going to agree with the report, but the conduct fine. The Legacy Commission, the central recommendations now that the Secretary of State has


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said he is not going to move forward with the payments, you do not want the Legacy Commission, so what is your alternative? Maintenance of the current situation, the creation of some other body, the ending of all such inquiries? What is your solution? We want to have that on the record so that we can consider what you would like when we come to decide what we wish to recommend.Mr White: Certainly our view, Chairman, is that going down what you would call the legalistic investigative path of inquiries and certainly of using what you would call criminal investigation as a mechanism for finding the broad issues of truth and things that are being sought, is running out of times in terms of what can be achieved in that respect. I think before anything moves forward we need to have an appraisal of what actually is in place at this moment in time because the feeling coming out of Eames-Bradley is that there is yet another layer of bureaucracy put upon the work of organisations that are actually in place and have been doing good work. So if we had some sort of capacity to stop, to take a good, honest and hard assessment of where we are going in relation to this, and answer some of the harder political questions. Is it really a political objective? As I said before, we hear the words that, yes, all people should be made available - murder is murder and therefore you should appear before the courts. But other political signals have been put out which more or less puts terrorist murder into a slightly different category than domestic murder, if I can use those words? Then let us unpick those things and let us tell the people exactly what the real difficulties will be if you are going to go down the investigative path where time is running out in terms of it, where the difficulties are as regards evidence, where the difficulties are in relation to actually framing, as it were, a prosecution case and where abuse processes and things might ultimately result in a rejection. If you want to academically find out then what are the broader issues - why did terrorism occur and what issues arise in relation to the use of informants and things of that nature - then they can be addressed in a more academic sense rather than, as it were, all this business of compellability and quasi-legalistic, as my colleague has said, Star Chamber type approach to trying to find out the past. Perhaps as somebody has said, we are running out of time in terms of the justice process but we are still too close to events in terms of the truth process, and we are somewhere in between that and I think we need to stop and take a collective long breath and see what is working and fund those issues, and then if there are residual issues that the community as a large feels it needs to be addressed then certainly look for softer mechanisms to try and tease out those issues. I do not personally feel a lot of issues can be resolved in the fashion that the Legacy Commission has been thought of and resulting in.Mr Albiston: Perhaps I can add to that. There was an answer given by a previous witness, Ms MacBride, in relation to a completely different question, which seemed to me to be absolutely pertinent and spot-on. When Ms MacBride was asked whether she thought that the issue of payments had increased tensions in Northern Ireland, to paraphrase her reply I think she said something like the tensions are there and this produced a focus for those tensions. I think one of the things we would be concerned with is whatever comes out of the Eames-Bradley Report carries with it the potential for producing a focus for existing tensions and that is why it needs such careful handling.Kate Hoey: Chairman, just a quick point to get it on record. We have talked earlier about sometimes when the law in Northern Ireland is very different in terms of appeals and the Ombudsman and so on, would you like to see a re-definition of the


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word “victim” in legal terms? When I listen now I wonder that we all passed it. Did anyone at the time ever raise this point about the fact that a victim is a victim and the definition now has led to all these problems that it did in Northern Ireland. Would you like to see it re-defined?Mr Albiston: I think the short answer, through the Chairman, is that we did not make a submission when the legislation was being passed. I do not know what our submission would have been had we made it.Kate Hoey: I just wondered because it seemed like it is one of these things now that at the time - and maybe I need to go back and read my Hansard - whether anyone ever actually questioned what now seems amazing, that we agreed such a definition. I have just been told that it was an un-amendable Order in Council.Chairman: There we are; and at that moment I am obliged by the Rules of the House of Commons to suspend this sitting. I will declare it at an end because there will be more than one vote. Gentlemen, thank you very much indeed for coming and thank you for your clear and helpful evidence, which we shall certainly take carefully into account. It may well be that we would want to write to you for a little bit more and it may well be that you want to send us a bit more because on the way back you may think, “I wish we had told them that.” Please feel free to do so. Thank you very much indeed and safe journey back. The session is closed.


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Appendix III

“Collusion” - Easy To Allege But Hard To Define?

The Police Ombudsman in her Statement of 22 January 2007 relied on two precedents to provide the definition of “collusion” which she applied in her examination of the issues contained within ‘Operation Ballast’. Those were the definitions offered by Lord Stevens in his Third Report relative to the Finucane murder and associated issues and by Judge Cory in his Report suggesting Public Inquiries into the deaths of Finucane, Hamill, Nelson and Wright.

The Ombudsman quotes Stevens as defining collusion to be “the wilful failure to keep records, the absence of accountability, the withholding of intelligence and evidence, the extreme of agents being involved in murder…”

She quotes from Cory that “the definition of collusion must be reasonably broad…That is to say that army and police forces must not act collusively by ignoring or turning a blind eye to the wrongful acts of their servants or agents, or supplying information to assist them in their wrongful acts, or encouraging them to commit wrongful acts. Any lesser definition would have the effect of condoning or even encouraging state involvement in crimes, thereby shattering all public confidence in these important agencies”

Stevens unfortunately gives little information in his summary as to what evidential test he applied to the matters that he states constituted collusion on the part of the police and army; and whilst he quotes specific areas of activity he gives no specific examples to illustrate the point. All we have to guide us is his statement that “the failure to keep records or the existence of contradictory accounts can often be perceived as evidence of concealment or malpractice. It limits the opportunity to rebut serious allegations. The absence of accountability allows the acts or omissions of individuals to go undetected. The withholding of information impedes the prevention of crime and the arrest of suspects. The unlawful involvement of agents in murder implies that the security forces sanction killings.”

Crucially Stevens goes on to say that “my three enquiries have found all these elements of collusion to be present…my enquiries with regard to satisfying the test for prosecution in relation to possible offences arising out of these matters are continuing.” So at least there appears from Stevens an indication that what seems on the surface to indicate collusion must undergo some further investigation if it is to be proven to constitute a criminal offence.

Similarly in Judge Cory’s statements on his definition of what might constitute collusion we find that he also goes on to indicate a further test that needs to be applied to those matters which on the surface appear to be collusive in nature. This test was not referred to by the Ombudsman in her Statement, but it is crucial to the


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understanding of Judge Cory’s thinking as to how those charged with the task of hearing the Public Inquiries might approach the issue.

In his commentary Judge Cory states that “In determining whether there are indications of state collusion …it is important to look at the issue from two perspectives. First, it must be seen whether the documents indicate that the action or inaction of government agencies might have directly contributed to the killing….Secondly, it is necessary to examine collusive acts which may have indirectly contributed to the killing by generally facilitating or encouraging terrorist activities. That is, the evidence may reveal a pattern of behaviour by a government agency that comes within the definition of collusion…..In this case it will be important to consider whether the documents reveal that government agents or agencies turned a blind eye to threats which were being made against the life...” Here we have two tests to apply in order to determine whether the action or inaction may indeed amount to evidence of collusion in this context:

Was the action or inaction directly responsible for a criminal act occurring?

Did the action or inaction indirectly contribute to a criminal act occurring by generally facilitating or encouraging terrorist activity?

The Ombudsman’s Statement has been examined for signs that a similar rigorous test to determine evidentially whether or not the acts or omissions deemed to be collusive in nature were in fact so, but all that can be found is a statement that “ in the absence of any justifiable reason why officers behaved as they did, the Police Ombudsman has identified from police documentation, records and interviews, collusion in the following areas...” This hardly represents a rigorous test linked to determining whether or not the action or inaction of officers facilitated or indirectly contributed to a criminal act occurring or generally facilitated or encouraged terrorist activity.

It is considered that the above three situations illustrate the difficult position in which any United Kingdom police service or intelligence agency now finds itself. Heretofore police agencies worked within clearly defined parameters i.e. the law and associated statutory regulations, case law, the internal disciplinary code and the rules of practice and procedure that governed the delivery of the service.

In essence an officer looked to the law and internal regulations to guide him or her in what was or was not permissible in the discharge of their duties. If he or she stepped outside that guidance then the officer knew that he or she would be liable for criminal prosecution or disciplinary sanction or indeed both.

Now however there appears to be another indeterminable state in which officers can find themselves, i.e. to be found to be in a state of “collusion”. This means that their actions, whilst falling outside any definition of a specific criminal or disciplinary offence, can still render them subject to adverse criticism resulting in public ridicule and censure.


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Even with the introduction of the Regulation of Investigatory Powers Act 2000, there remains an absence of any real clarity as to the legal definition of collusion and how it is causally linked to the facilitation, encouragement or commission of wrongful acts, which may or may not be crimes or acts of indiscipline in themselves. Collusion in the minds of the general public has come to mean representatives of the state agencies assisting or facilitating in some way the criminal acts of paramilitaries. Such acts would normally be covered by specific charges relating to conspiracy, incitement, aiding and abetting, assisting offenders, etc.

In the Ombudsman’s Statement however the traditional act of collusion, that wilful act or omission done with the knowledge and intention that it will assist or facilitate the commission of a crime, has been substantially stretched to remove any direct or indeed indirect connection with a wrongful act on the part of a third party. The act or omission in itself can now apparently be deemed to be a collusive action simply because it is deemed to be so by the investigator.

Thus, for example, the Ombudsman cites as being indicative of collusion:

“By routinely destroying all Tasking and Co-ordinating Group original documentary records so as to conceal an informant’s involvement in crime”

“By their failure to maintain the record of intelligence which was the basis for applications for extensions of time in detention to the Secretary of State”

“By the practice of Special Branch not using and following the practice of authorisation of Participating Informants”

(Ombudsman’s Statement Pages134-136)

These alleged collusive acts or omissions are a long way from the traditionally accepted view as to what constitutes collusion, but by attaching that emotive term to them they are elevated in the minds of the public to being tantamount to acts or omissions designed and perpetrated to assist terrorists. This is an abhorrent manipulation of facts that means, in effect, that any innocent action or omission can, without any further test being applied, be labelled as collusive if it suits the agenda of the author.

So exactly what is collusion? If we are to guard against it then we must be able to recognise it. Is it an offence in its own right? Or is it like other inchoate offences such as conspiracy, incitement or attempt, where the law seeks to punish conduct not because it involves harm, but because it enhances the prospect of actual harm occurring? If this is so then it should relate to a substantive offence, but that does not seem to be the case when we examine the examples contained in the Ombudsman’s Statement.

Alternatively, if the conduct does not amount to the commission of a criminal offence, or even the ‘actus reus’ or ‘mens rea’ of an offence, it may nevertheless constitute a breach of the professional standards which the members of a police service are required to uphold. If this is so then these standards should be found


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clearly articulated in the written Code of Ethics, Manual of Instruction, Force Orders or other authoritative guidance or directions provided to officers by their authorities. But again no reference is made by the Ombudsman to such guidance or to the instructions then in place: and no recommendation appears to have been made regarding the disciplining of any serving officer. (Although, characteristically, without evidence of any disciplinary offence, the Ombudsman sees fit, in her Recommendations, paragraph 34.7 of the Statement, to advise the Chief Constable to “review the continued deployment” of certain officers. This is code for removing them from post in Intelligence Branch, which would be universally read as a form of sanction.)

Perhaps, on the other hand, collusion is neither a breach of the criminal law nor the discipline code, but merely a breach of some perceived moral standard which the police service is expected to uphold in its dealings with informants. Accepting that there is, and must be, such a thread of morality running through delivery of any policing service, how is it to be expressed and how will a police officer know in any given set of circumstances that he or she has stepped over the line? Whatever form of collusion the Ombudsman’s Statement has conjured up in the minds of the public, politicians or media, it has invariably been seriously damaging to the image of policing and to the reputations of those officers in command during the period under review. That outcome must have been self-evident to the Ombudsman and it compounds her failure to exercise that greater standard of care and higher quality of reasoning necessary to sustain the conclusions reached.

Nowhere within the Ombudsman’s Statement can we find any rigorous definition or legal test which, when applied to alleged acts or omissions, clearly shows that there was a breach of either the criminal law or disciplinary code or that warranted the said act or omission being deemed to have been collusive and necessitating punishment or censure of some kind.

What seems to have occurred instead is a labelling exercise, devoid of any impartial testing, whereby acts or omissions which sit outside the current body of criminal offences such as aiding and abetting, counselling or procuring, incitement, attempt or conspiracy, or any of the activities that would render an investigation unsound such as entrapment or agent provocateur, are deemed to be collusive in nature.

This is completely unsatisfactory and totally inconsistent with any pretence of impartial adjudication or the seeking of justice. It appears that the goal posts may be shifted at any moment in order to facilitate the hypothesis being considered by the investigator and to feed the conclusions that he or she wishes to reach. Without a clear definition of what acts or omissions the term collusion refers to, we are destined to have yet further investigations throw up further acts that are deemed to be collusive and which feed the growing confusion in the minds of the public and police alike as to what is the particular wrong being alleged and how it is to be addressed.

The privilege enjoyed by an investigative body to make, without fear of civil redress, public “statements” which can potentially damage the reputation of individuals or of public bodies needs to be exercised with great care and with the


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highest degree of responsibility. If it is not so exercised then such statements may provoke undue concerns amongst the relatives of victims of terrorism and cause unnecessary public anxiety. The public interest is not served by the publication or communication of misinformation; and the privilege itself becomes no more than a licence to distort or misrepresent, in order to bolster conclusions which have been arrived at more by prejudice than by due process.

Public representatives, the media and the public at large must resist such a development. A useful start should be made by developing some discipline and clarity over the use of the term “collusion”.


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Appendix IV

N I R P O ANORTHERN IRELANDRETIRED POLICE OFFICERS ASSOCIATION

From the Chairman, D Turkington Esq MBE

Ms M . . . Head of Legacy BranchDepartment of JusticeBlock ACastle BuildingsStormont EstateBelfast BT4 3SG

9 August 2013

Dear Ms M . . .,

CONSULTATION ON A REFORMS PACKAGE FOR THE FUTURE OPERATION OF THE OFFICE OF THE POLICE OMBUDSMAN FOR NORTHERN IRELAND (OPONI)

I refer to your letter of 17 June 2013 with enclosures and write on behalf of the Northern Ireland Retired Police Officers Association (NIRPOA) in response to your consultation document. We welcome this further opportunity to comment on issues which significantly affect many of our members.

We note that many of the issues which are currently raised for consideration have previously been considered. As our views remain similar to those which we expressed in our response to your earlier consultation document (May 2012) I have appended the text of our response to this letter for ease of reference. We would ask you to consider the views which are expressed therein to represent our continuing and current position in relation to those issues which have been revisited in your present paper.

I believe however that it is necessary to draw your particular attention to four issues which materially affect our members and about which there is considerable


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and continuing concern. In addition I will take the opportunity to comment on a number of the questions which you raise in Annex C of your consultation paper.

Five Year Review – Recommendation 17

We are most concerned to see that the recommendation to compel retired police officers to attend for interview with the Ombudsman has re-surfaced. Our stated position remains, as per our previous letter:

“It is our considered view that implementation of this recommendation would beultra vires and illegal under the provisions of ECHR;immoral in relation to the welfare of retired police officers;totally disproportionate to the supposed problem which it is apparently designed to remedy;highly counter-productive in terms of the relationship between retired police officers and the office of PONI; andextremely expensive to the taxpayer in terms of the inevitable actions for wrongful arrest and detention.

What can possibly be meant by “a power to compel retired or former police officers to submit to witness interview”? Is this to be an arrest under the provisions of the Police and Criminal Evidence Act (PACE) or some other statutory power? We may marvel that the author has seen fit to delete the legal requirement to “answer questions” from the notorious 2007 report; that ludicrous proposition was perhaps just too much for the current author. But the basic failure to grasp essential issues of legal procedure and the rights of the individual seems to have persisted.

If the “grave or exceptional matters” involve allegations of crime then sufficient powers to address these matters already exist; and these should be exercised in respect of retired police officers in the same way that they are exercised in respect of anybody else. Retired police officers are either suspects, witnesses or potential witnesses, just like everybody else.

Furthermore “a power to compel” must invariably be accompanied by a sanction to enforce compliance. None is referred to. What punishment does the author have in mind for retired police officers who fail to comply with directions which could not be imposed on any other citizen? Clearly very grave issues surround this recommendation, which to our eyes has no clear rationale based on any evidence as yet adduced by the Ombudsman to warrant such a major change in the justice process.”

We also stated:

“Paragraph 10.9: We fundamentally disagree with the text of paragraph 10.9. The contents of the paragraph are highly objectionable to us. The arguments offered are flawed and in places are self-contradictory. They smack of the irrational prejudices and frustrations of the first PONI post-holder (and indeed featured in the 2007 report); they have no foundation and they must be rejected absolutely.


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“The Police Ombudsman has no power to compel those [retired] officers to assist his investigation or provide him with documentation compiled by them during their service and retained by them upon retirement”. Investigatory bodies generally have no statutory power to compel any persons to assist them, even in relation to serious criminal matters. Where such powers do exist (for example in relation to money-laundering) they are specific to the circumstances and are severely circumscribed. The Ombudsman has no clearly demonstrated need for any powers in relation to retired police officers which exceed those accorded to the police, HMRC or any other bodies which are charged with the investigation of criminal offences.

We say further that in principle it would be wrong and disproportionate to attempt to introduce such powers in relation to suspected historical internal discipline matters. This would be an unnecessary and objectionable extension of the powers of the Ombudsman. The Report itself provides evidence against its own recommendation: “Most retired officers do assist . . .” It is hard to escape the conclusion that the phrase “some with crucial information do not cooperate” is a thinly-veiled reference to the first post-holder’s groundless and spiteful outbursts in relation to the flawed “Ballast” report of January 2007. Her infamous comments in relation to a group of respected retired senior police officers on that occasion were entirely unsupported by evidence and were categorically rejected by those supposedly involved.

It is hard to see what “documentation” the author expects to see surface as a result of implementation of this recommendation. Official documents remain the property of the police service and are surrendered on retirement. Personal documents are personal and should be subject to seizure by public officials in relation to criminal investigations on the same basis as anybody else’s personal documents. There are no “hybrid” documents and the Report offers absolutely no reason why a retired police officer’s privacy should be compromised in circumstances which would not apply to any other citizen.

“This requirement has been highlighted in a significant way with recent investigations of very serious historic matters where the refusal of retired officers to cooperate damages confidence in the oversight process and policing in general terms.” Which recent investigations are these? Who says that damage has been done to “confidence” by retired police officers? Where is the evidence? None of this was suggested during the regular meetings which our association has held with the second post-holder and his senior officials (during the period between the 2007 report and the 2011 report) in order to develop increased levels of cooperation. The obvious conclusion to be drawn from such a remark in this report is that it is a harking back to the concerns of a previous regime as a result of the internal “office politics” problems within the office of PONI which were revealed by external inquiries as well as by the notorious conduct of a senior official through the medium of an imbalanced and ill-researched sensation-seeking television programme.

If there remains a belief anywhere in the office of PONI that there is a continuing reluctance on the part of some individual retired police officers to assist PONI in relation to discipline matters then we suggest that the remedy lies not in clumsy


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attempts to browbeat all retired officers with legislation which is unnecessary and, in our view, probably also likely to be ultra vires under ECHR, but rather in continuing the dialogue which was established.

Such cooperation will be the result of confidence; and confidence has to be earned. Our concerns with the quality of PONI investigations are well documented. It would be better for PONI to admit the defects of previous investigations and the improper conduct of staff and to undertake to improve matters rather than to seek (again) simply to bully retired officers into compliance.”

To this we would add the following:

The outgoing Ombudsman, during several years of negotiations with our association in an effort to establish effective working protocols and thereby undo the needless damage caused by his predecessor, made no mention to us of any need for such draconian powers. Why have they suddenly become necessary? The inference seems to be that this policy has more to do with the character, ambition and attitude of the PONI post-holder than with any imagined difficulties which may be created by retired police officers.

A lot of nonsense has been uttered in public on this subject. It would perhaps not be helpful to revisit the fiasco which engulfed the Ombudsman, the Chief Constable and the Secretary of State at the publication of the “Ballast” report. Suffice it to say that it is an entirely reasonable position for retired officers to state that their recollection of events was committed to a statement of evidence many years ago and that any new enquiry into events in the distant past should rely on those documents. Any Ombudsman who were in any way committed to the concept of best evidence should not find that concept too difficult to understand. A retired officer might indeed be prompted to further and better recollections through skilful questioning in a voluntary context; but any “failure” to elaborate on a previous statement cannot be described as reluctance to assist and should not be preyed in aid of a spurious campaign to garner new and unwarranted powers for the Ombudsman.

Let us be absolutely clear about this. If this measure is forced through then our association will reluctantly feel obliged to contact all retired officers with appropriate advice. That advice will be that they should comply with the law by attending for interview when so directed, but that they should say absolutely nothing in answer to any questions put to them.

The result of imposing such an unreasonable and unnecessary piece of legislation will be a further deterioration in the relationship between the police family and the office of the Police Ombudsman – contrary to the rubric and intention of the Police Act.

Complaints Mechanism

Once again we note that no effort has been made to introduce an independent mechanism for holding the Ombudsman and his or her staff to account for their actions. Previously we wrote:


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“We also note that once again the Report fails to make any recommendation in relation to the provision of mechanisms for holding the office-holder or his/her staff to account. We will repeat here what we have said ad nauseam to Government and to the political parties – that it is untenable, in terms of natural justice and under the provisions of Article 13 of the European Convention on Human Rights (ECHR), to continue to protect from any form of redress of grievance an institution which wealds such enormous and intrusive powers. This issue will not go away and we will continue to press it until such time as a satisfactory resolution is achieved. This may require recourse to institutions which lie outside the United Kingdom.”

We also stated:

“It is highly regrettable (if not altogether surprising) that the Report has entirely failed to address the single most important issue in relation to OPONI’s establishment and functioning, that is to say the defect (yet to be remedied by government, despite five years of lobbying by NIRPOA) by which it enjoys the powers of arrest, detention, interview, report for prosecution, search of premises, seizure of property, application for facilities under RIPA etc without being subject to any mechanism for complaint by those who are the subject of its attentions.

The only advice offered by the official literature and website of OPONI at present in relation to complaints against the Ombudsman is that the Ombudsman is independent and his decision is final. It does seem to acknowledge that people might have grounds to complain – to the Ombudsman - about “maladministration”, but offers subsequent recourse to the Minister of Justice only if the complainant is not satisfied by the determination issued by the head of the office against whom the complaint is made. This in no way constitutes an independent mechanism for the registering, investigation and resolution of complaints against the conduct of the Ombudsman or his staff. Compensation which is achieved through civil actions in the courts, or which is awarded by the Ombudsman in an effort to avoid such civil action, is not appropriate to all cases in which the conduct of the Ombudsman is challenged; nor does it allow for suitable sanctions to be imposed by an external and independent body.

“Judicial Review”, which has sometimes been cited to us as a mechanism for redress, is wholly unsuited to dealing with this anomaly. Quite apart from the expense and delay which are necessarily involved, the judicial review process may lead only to an instruction to an erring body to follow different procedures or to revisit its decisions. It cannot lead to a finding of culpability and the imposition of sanctions on the head of an office or one of her/his servants who has been found to have abused their position of authority and trust in circumstances which fall short of the commission of a criminal offence.

This scandalous situation, which places the United Kingdom at odds with UK conventions on public life and with its obligations under the provisions of the ECHR, not to mention considerations of natural justice, is long overdue for remedy.”


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Where in the present paper is there any promise to address this continuing scandal?

Binding Guidelines for the Ombudsman

In response to the previous consultation document we stated:

“Nor does the Report allude to the fact that, despite earlier promises of consideration of the matter by the Northern Ireland Office (NIO), no progress appears to have been made in producing binding guidelines for the work of the Ombudsman’s office. The original failure to introduce appropriate schedules to the enabling legislation appears to have been perpetuated.”

We further stated:

“Those who wield significant powers (such as the police themselves) tend nowadays to be subject to an elaborate array of protocols which govern their conduct. These may be secondary or subordinate to legislation, but are considered to be binding. Failure to adhere to them may result in the weakening of a prosecution case or indeed in some form of disciplinary sanction for the official involved. They are to be found in relation to, for example, the exercise of police powers under the Police and Criminal Evidence Act or the Regulation of Investigatory Powers Act.

One of our colleagues, as a serving police officer, was interviewed under caution by the staff of OPONI in relation to an alleged criminal matter some ten years ago. Today, more than eight years after his supposed “retirement”, that office has not had the courtesy to advise him on how the investigation stands.

Should this not constitute a breach of some form of agreed standard?

Should there not be some mechanism (other than judicial review) for addressing this?

Should there not be some independent body in authority which can impose appropriate sanctions?”

Astonishingly (or perhaps not?) the officer to whom we referred has still not received any information concerning this particular case.

Where in the present paper is there any promise to address this continuing scandal?

Powers under Section 62 to make “Statements”

In response to the previous consultation document we stated:

“Furthermore the Report is silent on the problem of PONI’s powers under Section 62 and the manner in which these have been exercised and, in our view, abused. Since the previous report this matter has, if anything, become even more


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problematic. Resolution of the issue is long overdue. We will set out reasons for our belief below; but the occasion of the Statutory Report provides an opportunity for this matter to be addressed.”

We further stated:

“It is also regrettable that the Report fails to consider the urgent need for reform of the powers of the office of PONI under Section 62, Police (Northern Ireland) Act, 1998, to make public statements. Experience has shown that such “statements” can be made on the basis of a discussion of so-called “evidence” which does not meet even the lowest threshold of proof, before it is presented to the public as having a gravity and credibility way beyond it actual value.

Allegations for which there is no proof have been included in such statements, sometimes accompanied by the meaningless comment that the allegations have not been proved to be false. Setting aside for a moment our suspicion that efforts to find evidence to support a number of such allegations of police misconduct or incompetence have been greater than any efforts to find evidence to rebut them, it has to be asked whether such undisciplined use of language would be permitted in other circumstances.

Often Section 62 statements are found to include a significant degree of speculation, hypothesis or inference, apparently driven by a desire to appease the complainant lobby or unelected pressure groups whilst at the same time seeking to market the supposed “detailed and investigative rigour” of PONI. In some cases the spurious allegations which the Ombudsman has allowed to go forward in a public statement have already been rejected by the Director of Public Prosecutions on the basis of lack of evidence. There is no need for any statement in such cases, other than to say that the Public Prosecution Service has directed ‘No Prosecution’; or, in the case of serving police officers, to add that the Chief Constable is, or is not, taking disciplinary action.

All this of course occurs without those to whom adverse reference is made having recourse to any form of redress. The importance of protocols such as those (advocated by, inter alia, Lord Salmon) of advising those whose role in public life might be criticised in the contents of such “statements”, and offering them the opportunity to answer allegations prior to publication, is apparently viewed by the Ombudsman as being outweighed by the advantages to OPONI of the publicity and propaganda value of launching a contentious Section 62 statement of dubious or non-existent merit.

On one notable occasion our Association rebutted a groundless but damaging “statement” (which amounted to no more than a series of assertions) by the Police Ombudsman with a detailed, evidence-based document running to some 70 pages. This was blithely dismissed by the first post-holder; and our impertinence in daring to point out the Emperor’s lack of clothes was punished with television appearances by a flustered Secretary of State and chief constable who variously threatened us with loss of pensions (which we have paid for ourselves) and exclusion from public appointments (which would clearly have been illegal).


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By contrast, under the regime of the second post-holder, a report which was deemed to be insufficiently critical of the police in the eyes of certain pressure groups was withdrawn and amended. It is perhaps ironic that even such one-sided behaviour was insufficient to save the post-holder from becoming the victim of a political campaign to have him removed. Such events only serve to demonstrate that the purpose of the office, insofar as it relates to historical matters, is concerned with serving the interests of political groups and not with the wider and more important aim (in our view) of serving the interests of justice.

There have been occasions when we have successfully persuaded OPONI to review former investigations and Section 62 statements; and have obtained for our members hard-won apologies for unprofessional conduct and inadequate investigative rigour; but amazingly even the most glaring errors contained within a Section 62 statement issued by the Ombudsman cannot be publicly corrected or withdrawn because it is protected in law and can only be withdrawn by the author. Not even the current post holder has the legal capacity to amend or withdraw grossly erroneous material; and to this day certain erroneous and highly objectionable statements remain as public record.”

The new post-holder has stated to our association at two separate meetings that he fully intends to draw conclusions from matters which do not constitute evidence, including the absence of certain information. This matter therefore remains very much a live issue for our association. It is right to point out that in a recent meeting with representatives of our association the new post-holder gave a strong indication that he would seek to adhere to Salmon principles in relation to the families of deceased members. Nevertheless the conundrum of the Section 62 Statement remains: chief constables would rightly be castigated for public condemnations of those against whom they had no evidence to prosecute.

Annex C

Question 1 – Do you believe an alternative mechanism for investigating historic cases should be put in place? If so what form should it take?

Yes – we strongly believe that the current mish-mash of pressure-group-driven public inquiries and statutory bodies which have been roundly criticised for their inept performance (OPONI, HET etc) need to be replaced by some mechanism which seeks to discover truth and to deliver justice rather than to comply with an overarching political agenda. We set out our initial views in our response to the Eames Bradley research; but there have been many developments since then and we are now engaged in reviewing our position.

Question 3 – Do you believe there needs to be a mechanism to appeal [against] decisions of the Ombudsman? If so what form should it take?

Yes – please refer to the arguments which we set out above. There are two issues. One is that some sort of review mechanism is required to temper the “findings” of a


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body which is exercising police powers rather than those of a higher ombudsman or judicial role. The other is that there is no independent means of dealing with complaints against the conduct of the Ombudsman or OPONI staff in relation to matters which fall short of criminal conduct. Some form of external disciplinary authority is clearly required for this.

Questions 4 – 7

These questions may be grouped together in that they appear to refer to the persistent failure of the authorities in Northern Ireland to adhere to the original concept for the independent investigation of, and adjudication upon, complaints against police as envisaged by Dr Hayes. Perhaps the dilemma might be resolved by the appointment of a separate authority (of judicial status) to adjudicate upon those investigations by the Ombudsman which were likely to lead to Section 62 Statements rather than prosecutions or disciplinary action.

Conclusion

In view of the very serious defects in the performance of the office of the Police Ombudsman which were identified by the Criminal Justice Inspectorate, we recommend that regular and detailed inspections should be carried out henceforth. As investigation and evidence-gathering form, or at least ought to form, an important element in the work of the organisation, consideration should be given to instigating an annual inspection by Her Majesty’s Inspector of Constabulary (HMIC). HMIC’s resulting reports should be publicly available.

We very much hope that the opportunity to address our concerns will not be missed yet again. Whilst we have sought political support for our position we are aware of the unfortunate realities arising from the need for continuing political negotiations and deal-making between the parties. We are however determined that our views will not continue to be ignored and we will take all necessary steps to ensure that this does not happen.

Yours sincerely,

D Turkington

Appendix – Copy of Text of NIRPOA Response to DOJ Consultation re PONI, May 2012

PONI – 2011 Review Under Section 61(4), Police (Northern Ireland) Act, 1998

I write on behalf of the Northern Ireland Retired Police Officers Association (NIRPOA) in response to your consultation document on the Statutory Report of


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the Police Ombudsman for Northern Ireland (PONI). We welcome this opportunity to comment on issues which significantly affect many of our members.

Introduction

We note that the Report makes 26 recommendations and that it compares these with the 26 recommendations which were made in the previous report (2007). We have earlier provided in writing our detailed views on the 2007 recommendations. Reference to our earlier submission will demonstrate that, for the most part, we were supportive of the recommendations, believing them to be logical and desirable in securing the legislative platform to enable the office of PONI to function effectively, credibly and independently.

However we categorically rejected certain recommendations and provided clear and detailed reasons for so doing. We are disappointed to see that a number of these have resurfaced in the 2011 recommendations. No new or persuasive argument has been adduced in support of these objectionable recommendations. We therefore propose to concentrate in this response on those recommendations which we believe must be rejected. Our arguments will centre on those areas which are likely to impact most directly on our members; there are other bodies which are better placed to speak with authority on matters which tend more to affect serving officers and civilian staff.

We also note that once again the Report fails to make any recommendation in relation to the provision of mechanisms for holding the office-holder or his/her staff to account. We will repeat here what we have said ad nauseam to Government and to the political parties – that it is untenable, in terms of natural justice and under the provisions of Article 13 of the European Convention on Human Rights (ECHR), to continue to protect from any form of redress of grievance an institution which wealds such enormous and intrusive powers. This issue will not go away and we will continue to press it until such time as a satisfactory resolution is achieved. This may require recourse to institutions which lie outside the United Kingdom.

Nor does the Report allude to the fact that, despite earlier promises of consideration of the matter by the Northern Ireland Office (NIO), no progress appears to have been made in producing binding guidelines for the work of the Ombudsman’s office. The original failure to introduce appropriate schedules to the enabling legislation appears to have been perpetuated.

Furthermore the Report is silent on the problem of PONI’s powers under Section 62 and the manner in which these have been exercised and, in our view, abused. Since the previous report this matter has, if anything, become even more problematic. Resolution of the issue is long overdue. We will set out reasons for our belief below; but the occasion of the Statutory Report provides an opportunity for this matter to be addressed.

Report pp 33 – 35: “Retired officers and others”


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Paragraph 10.8: We agree with the text of paragraph 10.8. It is indeed “quite correct” that police officers should not be subject to disciplinary investigation or sanctions after their retirement. We further agree that retired police officers should continue to be liable to investigation in respect of any suspected criminal offences committed during their term of service.

Paragraph 10.9: We fundamentally disagree with the text of paragraph 10.9. The contents of the paragraph are highly objectionable to us. The arguments offered are flawed and in places are self-contradictory. They smack of the irrational prejudices and frustrations of the first PONI post-holder (and indeed featured in the 2007 report); they have no foundation and they must be rejected absolutely.

“The Police Ombudsman has no power to compel those [retired] officers to assist his investigation or provide him with documentation compiled by them during their service and retained by them upon retirement”. Investigatory bodies generally have no statutory power to compel any persons to assist them, even in relation to serious criminal matters. Where such powers do exist (for example in relation to money-laundering) they are specific to the circumstances and are severely circumscribed. The Ombudsman has no clearly demonstrated need for any powers in relation to retired police officers which exceed those accorded to the police, HMRC or any other bodies which are charged with the investigation of criminal offences.

We say further that in principle it would be wrong and disproportionate to attempt to introduce such powers in relation to suspected historical internal discipline matters. This would be an unnecessary and objectionable extension of the powers of the Ombudsman. The Report itself provides evidence against its own recommendation: “Most retired officers do assist . . .” It is hard to escape the conclusion that the phrase “some with crucial information do not cooperate” is a thinly-veiled reference to the first post-holder’s groundless and spiteful outbursts in relation to the flawed “Ballast” report of January 2007. Her infamous comments in relation to a group of respected retired senior police officers on that occasion were entirely unsupported by evidence and were categorically rejected by those supposedly involved.

It is hard to see what “documentation” the author expects to see surface as a result of implementation of this recommendation. Official documents remain the property of the police service and are surrendered on retirement. Personal documents are personal and should be subject to seizure by public officials in relation to criminal investigations on the same basis as anybody else’s personal documents. There are no “hybrid” documents and the Report offers absolutely no reason why a retired police officer’s privacy should be compromised in circumstances which would not apply to any other citizen.

“This requirement has been highlighted in a significant way with recent investigations of very serious historic matters where the refusal of retired officers to cooperate damages confidence in the oversight process and policing in general terms.” Which recent investigations are these? Who says that damage has been done to “confidence” by retired police officers? Where is the evidence? None of this was suggested during the regular meetings which our association has held


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with the second post-holder and his senior officials (during the period between the 2007 report and the 2011 report) in order to develop increased levels of cooperation. The obvious conclusion to be drawn from such a remark in this report is that it is a harking back to the concerns of a previous regime as a result of the internal “office politics” problems within the office of PONI which were revealed by external inquiries as well as by the notorious conduct of a senior official through the medium of an imbalanced and ill-researched sensation-seeking television programme.

If there remains a belief anywhere in the office of PONI that there is a continuing reluctance on the part of some individual retired police officers to assist PONI in relation to discipline matters then we suggest that the remedy lies not in clumsy attempts to browbeat all retired officers with legislation which is unnecessary and, in our view, probably also likely to be ultra vires under ECHR, but rather in continuing the dialogue which was established.

Such cooperation will be the result of confidence; and confidence has to be earned. Our concerns with the quality of PONI investigations are well documented. It would be better for PONI to admit the defects of previous investigations and the improper conduct of staff and to undertake to improve matters rather than to seek (again) simply to bully retired officers into compliance.

Paragraph 10.10: We agree with the text of paragraph 10.10. Police officers and retired police officers should be subject to the criminal law in the same way as other citizens. Legal and civic obligations in relation to criminal matters which fall upon citizens should (absent any good reason to the contrary) also fall on retired police officers. We are not sure however that the wording of Recommendation18 clearly reflects what is intended and we comment on this below.

Paragraph 10.11: We do not accept the implications of paragraph 10.11. Our association would not support retired police officers who refused to give information which might assist in the investigation of a criminal offence any more than we would approve of such conduct by any member of the public. Let it be the same for all. But where does the assertion “a refusal by retired police officers to give information . . . has the effect of reducing public confidence in police officers generally” have its genesis? On what evidence is this based?

There is perhaps a broader political point here. The current political agenda to rehabilitate elements of society who were excluded or who excluded themselves has led to a process whereby the current policing arrangements are being distanced from the previous policing arrangements. That is to put in its most neutral terms a process which is very hurtful to many of us. The point in relation to the present paper is that it is therefore somewhat disingenuous to suggest that criticism of retired officers will be allowed by the political powers that be to impact in any way on the reputation of the serving PSNI.

Indeed concerns about the conduct of retired officers, if they exist, have been generated not by the conduct of the retired officers themselves but rather by the misinformation which has been distributed by elements within the PONI office and by political elements which manifestly have no interest in truth or justice. It is


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surprising and disappointing to see this sort of nonsense being regurgitated in a PONI report at this late stage in the political process.

Paragraph 10.12: This paragraph is an exact reproduction of the equivalent paragraph in the 2007 report. Our position remains that we broadly sympathise with the view expressed in the text, but we are not at all sure that the subsequent recommendation (Recommendation 18) is really a call for good civics. We query exactly what is meant by “an investigation”. We would accept that the public (or at least the law-abiding section of it) would expect people, including retired police officers, to assist “an investigation” where this relates to criminal matters. We are less persuaded that the public would take much of a view on participation in inquiries into historic disciplinary matters.

If members of the public wish to come forward with information in relation to police disciplinary inquiries then let them; to place some sort of obligation on them would, in our view, be ultra vires, ineffective, disproportionate and counter-productive. We are not aware of any obligation on members of the public to come forward with information which would generate or assist inquiries into disciplinary matters relating to members of the Fire and Rescue Service, retired or otherwise.

Recommendation 17: It is our considered view that implementation of this recommendation would beultra vires and illegal under the provisions of ECHR;immoral in relation to the welfare of retired police officers;totally disproportionate to the supposed problem which it is apparently designed to remedy;highly counter-productive in terms of the relationship between retired police officers and the office of PONI; andextremely expensive to the taxpayer in terms of the inevitable actions for wrongful arrest and detention.

What can possibly be meant by “a power to compel retired or former police officers to submit to witness interview”? Is this to be an arrest under the provisions of the Police and Criminal Evidence Act (PACE) or some other statutory power? We may marvel that the author has seen fit to delete the legal requirement to “answer questions” from the notorious 2007 report; that ludicrous proposition was perhaps just too much for the current author. But the basic failure to grasp essential issues of legal procedure and the rights of the individual seems to have persisted.

If the “grave or exceptional matters” involve allegations of crime then sufficient powers to address these matters already exist; and these should be exercised in respect of retired police officers in the same way that they are exercised in respect of anybody else. Retired police officers are either suspects, witnesses or potential witnesses, just like everybody else.

Furthermore “a power to compel” must invariably be accompanied by a sanction to enforce compliance. None is referred to. What punishment does the author have in mind for retired police officers who fail to comply with directions which could not be imposed on any other citizen? Clearly very grave issues surround this recommendation, which to our eyes has no clear rationale based on any evidence


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as yet adduced by the Ombudsman to warrant such a major change in the justice process.

Recommendation 18: We suggest that an amendment to the text of the recommendation would make its precise meaning clearer and would thereby secure our support. In order to ensure that it is fully understood that the obligations conferred by this amendment to Section 5(1), Criminal Law Act, 1967, apply only in respect of criminal matters and not in respect of disciplinary matters the second part of the recommendation should be amended to read: “or where the information relates to criminal conduct by police, the Police Ombudsman for Northern Ireland”.

Report pp 36 – 37: “Police Ombudsman powers of retrospective investigation”

Paragraphs 10.17 – 10.20 discuss briefly the respective roles of the Historical Enquiries Team (HET) and the office of PONI in relation to historic cases where deaths may have involved the police in some way. The Report erroneously concludes that the current arrangements have the “effect of depriving one class of victim from potential further enquiry, namely those cases where the deaths occurred at the hands of the police”. The author may be unfamiliar with details of the original investigations by the RUC, the DPP/Attorney General files (where death occurred at the hands of the police), the court hearings, the inquests, the additional external inquiries (Stalker, Sampson, Port etc), the numerous public inquiries and indeed the continuous worldwide media scrutiny; but he or she should at least offer some rational reason for supposing that PONI has anything tangible and practical to offer in relation to such matters. Of course we understand the desire for “empire-building”, but we believe that this is merely a self-serving recommendation which should be resisted.

There is no explanation of what added value, if any, PONI could bring to these matters. There is no suggestion as to how the wider public interest might be served or how continuing damage to the political process by further raking over old cases in an attempt to blacken the name of the police might be mitigated. There is no attempt to consider how priorities might be agreed. There is no consideration of what public services might need to be abandoned or restricted in order to finance such nugatory work or indeed what catalogue of past cases can actually be referred to as clearly evidencing the need for change. Finally adequate grounds already exist to reopen any case where credible “fresh evidence” emerges and to date HET has been scrupulous in referring to the OPONI any case where its investigations revealed doubt over the original investigation or record, or where possible new lines of inquiry have emerged.

Recommendation 20: For the reasons articulated above we categorically reject this recommendation. Previous PONI investigations of weighty or contentious matters have given absolutely no grounds for any confidence whatsoever that the office of PONI is equipped to shed new or helpful light on historic matters.

Article 13, European Convention on Human Rights

It is highly regrettable (if not altogether surprising) that the Report has entirely failed to address the single most important issue in relation to OPONI’s


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establishment and functioning, that is to say the defect (yet to be remedied by government, despite five years of lobbying by NIRPOA) by which it enjoys the powers of arrest, detention, interview, report for prosecution, search of premises, seizure of property, application for facilities under RIPA etc without being subject to any mechanism for complaint by those who are the subject of its attentions.

The only advice offered by the official literature and website of OPONI at present in relation to complaints against the Ombudsman is that the Ombudsman is independent and his decision is final. It does seem to acknowledge that people might have grounds to complain – to the Ombudsman - about “maladministration”, but offers subsequent recourse to the Minister of Justice only if the complainant is not satisfied by the determination issued by the head of the office against whom the complaint is made. This in no way constitutes an independent mechanism for the registering, investigation and resolution of complaints against the conduct of the Ombudsman or his staff. Compensation which is achieved through civil actions in the courts, or which is awarded by the Ombudsman in an effort to avoid such civil action, is not appropriate to all cases in which the conduct of the Ombudsman is challenged; nor does it allow for suitable sanctions to be imposed by an external and independent body.

“Judicial Review”, which has sometimes been cited to us as a mechanism for redress, is wholly unsuited to dealing with this anomaly. Quite apart from the expense and delay which are necessarily involved, the judicial review process may lead only to an instruction to an erring body to follow different procedures or to revisit its decisions. It cannot lead to a finding of culpability and the imposition of sanctions on the head of an office or one of her/his servants who has been found to have abused their position of authority and trust in circumstances which fall short of the commission of a criminal offence.

This scandalous situation, which places the United Kingdom at odds with UK conventions on public life and with its obligations under the provisions of the ECHR, not to mention considerations of natural justice, is long overdue for remedy.

Section 62, Police (Northern Ireland) Act, 1998

It is also regrettable that the Report fails to consider the urgent need for reform of the powers of the office of PONI under Section 62, Police (Northern Ireland) Act, 1998, to make public statements. Experience has shown that such “statements” can be made on the basis of a discussion of so-called “evidence” which does not meet even the lowest threshold of proof, before it is presented to the public as having a gravity and credibility way beyond it actual value.

Allegations for which there is no proof have been included in such statements, sometimes accompanied by the meaningless comment that the allegations have not been proved to be false. Setting aside for a moment our suspicion that efforts to find evidence to support a number of such allegations of police misconduct or incompetence have been greater than any efforts to find evidence to rebut them, it has to be asked whether such undisciplined use of language would be permitted in other circumstances.


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Often Section 62 statements are found to include a significant degree of speculation, hypothesis or inference, apparently driven by a desire to appease the complainant lobby or unelected pressure groups whilst at the same time seeking to market the supposed “detailed and investigative rigour” of PONI. In some cases the spurious allegations which the Ombudsman has allowed to go forward in a public statement have already been rejected by the Director of Public Prosecutions on the basis of lack of evidence. There is no need for any statement in such cases, other than to say that the Public Prosecution Service has directed ‘No Prosecution’; or, in the case of serving police officers, to add that the Chief Constable is, or is not, taking disciplinary action.

All this of course occurs without those to whom adverse reference is made having recourse to any form of redress. The importance of protocols such as those (advocated by, inter alia, Lord Salmon) of advising those whose role in public life might be criticised in the contents of such “statements”, and offering them the opportunity to answer allegations prior to publication, is apparently viewed by the Ombudsman as being outweighed by the advantages to OPONI of the publicity and propaganda value of launching a contentious Section 62 statement of dubious or non-existent merit.

On one notable occasion our Association rebutted a groundless but damaging “statement” (which amounted to no more than a series of assertions) by the Police Ombudsman with a detailed, evidence-based document running to some 70 pages. This was blithely dismissed by the first post-holder; and our impertinence in daring to point out the Emperor’s lack of clothes was punished with television appearances by a flustered Secretary of State and chief constable who variously threatened us with loss of pensions (which we have paid for ourselves) and exclusion from public appointments (which would clearly have been illegal).

By contrast, under the regime of the second post-holder, a report which was deemed to be insufficiently critical of the police in the eyes of certain pressure groups was withdrawn and amended. It is perhaps ironic that even such one-sided behaviour was insufficient to save the post-holder from becoming the victim of a political campaign to have him removed. Such events only serve to demonstrate that the purpose of the office, insofar as it relates to historical matters, is concerned with serving the interests of political groups and not with the wider and more important aim (in our view) of serving the interests of justice.

There have been occasions when we have successfully persuaded OPONI to review former investigations and Section 62 statements; and have obtained for our members hard-won apologies for unprofessional conduct and inadequate investigative rigour; but amazingly even the most glaring errors contained within a Section 62 statement issued by the Ombudsman cannot be publicly corrected or withdrawn because it is protected in law and can only be withdrawn by the author. Not even the current post holder has the legal capacity to amend or withdraw grossly erroneous material; and to this day certain erroneous and highly objectionable statements remain as public record.

Protocols or Guidelines


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Those who wield significant powers (such as the police themselves) tend nowadays to be subject to an elaborate array of protocols which govern their conduct. These may be secondary or subordinate to legislation, but are considered to be binding. Failure to adhere to them may result in the weakening of a prosecution case or indeed in some form of disciplinary sanction for the official involved. They are to be found in relation to, for example, the exercise of police powers under the Police and Criminal Evidence Act or the Regulation of Investigatory Powers Act.

One of our colleagues, as a serving police officer, was interviewed under caution by the staff of OPONI in relation to an alleged criminal matter some ten years ago. Today, more than eight years after his supposed “retirement”, that office has not had the courtesy to advise him on how the investigation stands.

Should this not constitute a breach of some form of agreed standard?

Should there not be some mechanism (other than judicial review) for addressing this?

Should there not be some independent body in authority which can impose appropriate sanctions?

Conclusion

It is about time that our legislators, whether in London or Belfast, got a grip of these issues of fundamental injustice and addressed them. The office of PONI might acquire some kudos and indeed some honour if it were seen to be in the vanguard of introducing such necessary reform, rather than ignoring the issues or resisting change.

Part of the problem may lie in the unfortunate choice of name for the office. There seems to have been confusion from the outset. Should the post-holder be seen as a high judicial figure, comparable to other ombudsmen, adjudicating on complaints from members of the public about the functioning of those in high public office? Or should the post-holder in fact act like, and exercise powers similar to, an independent chief constable? Acting as a sort of independent crime branch as well as a complaints and discipline branch of a busy constabulary is not consistent with delivering authoritative determinations on issues of major public interest.

In short there has been a failure to distinguish between the very different roles of the investigator and the adjudicator, which in turn has created the conditions for poor justice. This difficulty has been compounded by the manifest lack of status, experience, training and professionalism which has been apparent in the personnel involved – at all levels.

Amongst our retired members who were serving during the period 1996-2001, particularly in senior ranks, there was widespread support for the principle of an independent mechanism for complaints against the police. We have been bitterly disappointed by the outcome. It may have been naive to expect that the office


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could rise above our local political divisions; but with the will to reform we remain hopeful that it could still do so.


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Appendix V

NIRPOA Response to Additional Proposals in Relation to the Office of Police Ombudsman

Recommendations and findings by the Police Ombudsman should be binding on the PSNI Chief Constable

We are totally opposed to this proposal. There should be no unnecessary interference with the independence of the Chief Constable, who must make judgements in relation to a wide range of issues, including operational matters, and must take responsibility for them.

Our association has been obliged on several occasions (most recently in relation to the flawed Section 62 Statement arising from his inquiry into the so-called “Good Neighbour Bombing”) to highlight the shortcomings of the Police Ombudsman’s work, in particular the tendency of office-holders to make judgements which are not evidence-based. We therefore oppose any further extension of the supposed remit of the office.

Your attention is also drawn to the recent case of Regina ex parte Chief Constable of West Yorkshire Police v the Independent Police Complaints Commission (EWHC 2698) in which His Honour Judge Richardson QC ruled that the investigating body could only establish facts which indicated that there was a case to answer. It could not also act as judge and jury and determine the outcome of any criminal or disciplinary matters and thereby oblige the Chief Constable to follow a certain line.

The PSNI should not interview or debrief serving or retired officers who are known to be witnesses or suspects in an existing or impending investigation by the Office of the Police Ombudsman

We are totally opposed to this proposal. We refer to our concerns at i) above in relation to the respective roles of the Chief Constable and the Police Ombudsman.

The responsibility for the investigation of crime in Northern Ireland remains with the Chief Constable, whose ability to deal with operational matters should not be limited in the way which is proposed here.

Even for those who might be sympathetic to the ambition of the Police Ombudsman to extend the powers of the office still further the present proposal must be excessive: it does not appear to seek to restrict this proposed additional power to cases in which there is a known locus between the matters about which the Chief Constable might wish to interview or debrief the officer (serving or retired) and the matters which are or may become under consideration by the Police Ombudsman.


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The Police Ombudsman must be empowered to arrest and interview agents and informers of the PSNI (or any other agency) if it may assist an investigation by the Police Ombudsman

We are totally opposed to this proposal. We believe that the occasions on which the Police Ombudsman is even aware of the existence of an agent should be limited to those in which the office of the Ombudsman has a clearly made-out “need to know”.

The function of the Police Ombudsman is to deal with complaints, including allegations of criminal matters, in which police officers are, or are reasonably suspected to be, at fault. The power to arrest and interview cannot be extended to members of the public; the responsibility for dealing with law-breaking by such persons remains firmly with the Chief Constable.

All protocols or memoranda of understanding governing the release of information from the PSNI and other agencies to the Office of the Police Ombudsman to assist an investigation should be available for scrutiny by the Policing Board/Justice Committee.

We support this proposal in principle. The “new beginning” which was envisaged under the terms of the Good Friday Agreement (1998) implied inter alia a default position of openness where no reason for secrecy could be established.

Our own negotiations with the Police Ombudsman in relation to a memorandum of understanding (MOU) have recently been resumed. If we are successful in developing such a document we would be happy (subject to the views of the other party, i.e. the Police Ombudsman) for its contents to be shared with interested parties such as the Policing Board or the Justice Committee.


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Appendix VI

N I R P O ANORTHERN IRELANDRETIRED POLICE OFFICERS ASSOCIATION

Stephen Otter Esq QPMHMI Inspector of Constabulary6th FloorGlobe House89 Eccleston SquareLondonSW1V 1PN

January 2013

Northern Ireland Historical Enquiries Team – Inspection

I write to you on behalf of the Northern Ireland Retired Police Officers Association (NIRPOA), which has a membership of some 3,000 and which represents the interests of over 10,000 former members the Royal Ulster Constabulary George Cross (RUCGC) and the Police Service of Northern Ireland (PSNI).

It is my understanding that you are currently carrying out an inspection of the Historical Enquiries Team (HET) which reports to the Chief Constable of the PSNI. Traditionally Her Majesty’s Inspector (HMI) would, at the commencement of an inspection, invite interested parties from within the inspected force to communicate with HMI staff on matters which they considered to be relevant. This would enable HMI to obtain the views of junior ranks on the way in which the force was performing. We believe that, in view of the very nature of the work being undertaken by the HET, it would be comparable and indeed highly appropriate for HMI to hear the views of retired members of the RUCGC and PSNI in relation to the work of the HET.

We therefore seek a meeting with you or your representatives at the earliest convenient opportunity. We have premises at Maryfield and would be pleased to welcome you there.

We believe that there is much to admire in the achievements of the HET, for example in relation to the comfort which they have brought to the families and friends of deceased persons, including members of the RUCGC and RUC


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Reserve, the armed forces and members of the public from a variety of backgrounds. There are however a number of areas of HET performance about which we have serious concerns. These concerns generally relate to the HET enquiries which centre on what are sometimes termed “controversial” killings. Although perhaps comparatively few in number it is important not to underestimate the damage which can be done to the feelings of individuals and families, to individual and collective reputations and potentially to future stability in Northern Ireland by the present defects in HET procedures and practices.

Specifically we would like the opportunity to address you on the following areas:

Impartiality: There are of course significant pressures on any individual or body which is charged with addressing the legacy of the past in Northern Ireland. Many of these pressures come from relatives and friends of deceased persons and some may arise from genuinely-held concerns; nevertheless it is important that any public body should quickly and adequately identify any political orchestration behind such pressures and take appropriate steps to maintain its impartiality. We believe that the HET has manifestly failed in this regard in relation to a number of its enquiries – with serious consequences - and we would be prepared to elaborate on this for your information.

Quality: Whether through the inexperience, lack of training or lack of local knowledge of the investigators or through lack of appropriate quality control and, ultimately, leadership, a number of reports have been issued which fall well short of the quality which might reasonably be expected. Defects include inadequate investigation, lack of contextualisation and inferences or even conclusions which are clearly unsupported by any evidence.

Procedures: It is commonly-accepted practice in the public sector to seek the views of those who may be liable to criticism in any report so that such individuals may have an opportunity to rebut any allegations. Similarly it is normal to alert individuals in advance to any report which may contain criticism of them or their actions (the “Salmon” principles). We can furnish you with examples where the HET have flagrantly and inexcusably breached these codes of conduct.

Disclosure: In our view the HET have taken inadequate steps to address the issue of disclosure. Our complaint relates in part to the fact that reports are made available to families which, in some notorious cases, have shown no willingness to maintain the confidentiality of the report. Selective leaking to journalists takes place, often at the behest of sinister organisations who seek to camouflage their own history of bloody deeds by an attempt to discredit those whose role was to protect life and to bring killers to justice. Meanwhile such reports are not made public in their entirety or disclosed to those who may have a genuine interest in the HET’s conclusions, such as our members.

Complaints: In clear breach of the provisions of Article 13 of the European Convention on Human Rights (ECHR), there exists no independent mechanism for the investigation of complaints made by those who wish to challenge the conduct of members of the HET staff, where such conduct falls short of actual criminal behaviour. The PSNI would hardly be an appropriate or independent body; and


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NIRPOA would have no confidence in the capacity of the office of the Police Ombudsman for Northern Ireland (PONI) to carry out such a function, given the consistently poor quality of so many of the investigations carried out by that body to date. We recognise that this defect in structures is not the fault of the HET itself, but we believe that your inspection may be an appropriate vehicle for drawing this matter to the attention of those with the capacity to remedy the present failing.

General: It is to say the least disappointing that the HET appears to pay such obsessive attention to the views of certain NGOs during the construction of its reports whilst at the same time neglecting those mechanisms for ensuring professional competence, thoroughness and independence which are generally applied to major enquiries within UK policing. You might wish to consider whether the use of an “editorial board” compensates adequately for the absence of conventional review mechanisms or an Independent Advisory Group (IAG).

We hope that you will feel that our concerns merit further investigation and we would welcome the opportunity of a meeting in which we could provide material to support the contentions which I have enumerated above.

As these matters impact directly upon responsibilities of the Chief Constable of the PSNI I am copying this letter to him.

D. Turkington MBEChairman

c.c. M. Baggott Esq., Chief Constable, PSNI


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Appendix VII

NIRPOA Short Briefing Note – Controversial Inquests

Introduction

Article 2 Considerations:

UK has a duty under Article 2 ECHR to conduct an effective investigation into loss of life where the state may have played a role or failed to protect the individualThis duty is generally discharged either by a criminal trial or by an inquestThere is no obligation on the UK to restrict itself to one of these particular forms of inquiryThe rules for inquests were changed recently (extended areas of inquiry & findings, compellability of witnesses) as a result of tensions between the will of Parliament (HRA) and the decisions of Strasbourg and the UK Supreme Court, thereby making the inquest system unsuitable for deaths involving the security forces, because of the implicit political agenda of certain “interested” parties The Number of Inquests:

At present it is estimated that 47 such inquests will be held, starting in March 2012Repeated experience with public inquiries has shown that these will be highly politicised and extremely expensiveIt is likely that a significant number of retired police officers will be expected to attend

Legal Representation:

PSNI will be represented but the RUC GC will not be – once again no corporate or collective voice for those who upheld the lawOther bodies (MOD, NIO, Security Service) may have different interests from PSNI and from the RUC GCInterests of individual retired officers may differ from those of PSNI or even from those of each otherThere will be a determined, organised and well-funded effort by the associates of terrorists to portray the security forces in a bad light - but no counter-balancing effort by any recognised official body to seek to ensure a proper presentation of the facts

The Interests of Our Members

Personal Security (Article 2 ECHR):

Who is conducting the threat assessment and on the basis of what material?What confidence can be placed in such a system in view of the political imperative to rehabilitate the terrorists?Will necessary measures be taken before the threat becomes real?


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What steps are being taken to protect the identity of retired officers (anonymity, screening etc)? What arrangements are in place to appeal against adjudications?What consideration has been given to addressing potential revelation of identity through questions concerning an officer’s individual role, rank and position?

Privacy (Article 8 ECHR) and Forced Labour (Article 4 ECHR):

What additional steps are being taken to protect the identity of retired officers (anonymity, screening etc) in the interests of their families?What consideration has been given to the welfare of officers who might be expected to make repeated appearances, given the nature of their job (for example, senior investigating officer)?What steps have been taken to address the potentially discriminatory effects of obliging retired officers to perform continual civic obligations? When does retirement actually become effective?

Fairness of Proceedings (Article 6 ECHR):

Length of time since the events – memory, loss of supporting documentary materialIntervention of subsequent (often traumatic) events leading to “false memory”Age and infirmity of witnesses in general; ability to recall accuratelySelective availability of witnesses – in particular the more senior the personnel the less likely to be alive, available and in full command of their facultiesPotential for self-incrimination of compelled witnesses and referral to DPP

The Interests of Justice

Complete lack of confidence of our members in the “historical” process as a result of conduct of public inquiries, PONI and HETThe wider political agenda making it impossible to obtain a fair hearing for representatives of what is perceived to be “the old order”Partial availability of evidenceAgenda to demonise the security forces in any case where full documentation is no longer available – for whatever reasonProven refusal of terrorists to participate honestly in any judicial or quasi-judicial process (for example in public inquiries) leading to one-sided outcomesImpossibility of empanelling an independent jury in most of the places where such inquests are likely to be held – the lessons of the Diplock court system should be learnt – other (ECHR-compliant) jurisdictions do not feel themselves bound in this respect

The Interests of National Security

Public inquiries have repeatedly demonstrated a cavalier (and even partisan) attitude to the discussion of secret material


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The lives of individuals (informants, those who turned “Queen’s Evidence” etc) who helped to minimise the ability of the terrorists to take life may be jeopardised and their right to privacy and family life compromisedTerrorists are conducting a “jig-saw” strategy whereby each inquest will be used as a vehicle for unravelling at least part of the secret methodology which frustrated their campaigns of murder, violence and intimidationTerrorists within Northern Ireland and other parts of the UK (as well as the ROI) will seek to learn lessons from the inquestsPotential informants will be dissuaded from saving lives here and in GB by the continuing revelation of the identity of informants and methods used to protect themCurrent security operations in NI, GB and beyond could be compromised by discussion of methodology – implications not restricted to Irish terrorism (Islamic fundamentalism, serious and organised crime etc)The morale of serving members of the security forces throughout the UK is already being undermined by the current attacks on the reputation of those who served it so well for so long in relation to Irish terrorism, in part because such attacks appear to have the tacit or even overt support of the stateAllies will not trust secret intelligence to a state which appears to be so willing to abandon its own servants, its own secrets and its own methodology

Political Considerations

What thought has been given to the potential impact of continual press reporting of inquest proceedings on the current political (or “peace”) process?Is it really expected that those who made sacrifices through public service in the interests of justice will now meekly sit back and allow their friends to be exposed to danger or improper criticism and their own efforts to be criticised in unfair circumstances?What arrangements have been made for the compellability of former Secretaries of State, Attorneys General, Directors of Public Prosecutions, Permanent Under Secretaries etc in relation to their evidence - on decision-making procedures, directions or advice given to senior security force officials, changes in policy (or lack of) as a result of deaths involving the security forces etc?

General

What arrangements will be made in relation to written statements which were made by members of the security forces when the rules and expectations in relation to inquests were very different from what they are now? Will they have any evidential value? Will new statements be sought or recorded for the first time? What if the witness is now deceased? How will the rules of “best evidence” be applied?Will a former SOS or PUS be invited to give evidence of “context”? To what extent were members of the security forces operating in circumstances which permitted normal “rule of law” considerations to be applied? What was the political direction in relation to the use of secret intelligence and the deployment of Special Forces?

The Alternative to Inquests with a Wide Remit

Our political leaders need to address this problem immediately. The way forward:


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A properly constituted official Review of all the relevant cases, taken as a wholePersons of high judicial standing and holding appropriate vetting to be involvedFull access to witnesses and secret material by the ReviewLimited access to witnesses and secret material for parties at discretion of the ReviewFull and vigorous use of PII application should the Review appear to be failing to protect either persons or methodology at potential riskFull press coverage of those parts of the evidence which the Review considers appropriate for open forum or publicationFully-funded independent and individual legal advice for any former members of the security forces who may be required to give evidence


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NIRPOA submission on dealing with the past to Haass

News & Politics

Transcript of NIRPOA submission on dealing with the past to Haass