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A seminar organised by British Irish rights watch and the Human Rights Centre in the School of Law, Queen’s University Belfast:
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“ACCOUNTABILITY IN TRANSITION” SATURDAY 16 FEBRUARY 2008 10:00 -1:30 PM SEMINAR ROOM 1, INSTITUTE OF GOVERNANCE, SCHOOL OF LAW, 63 university road, QUEEN’S UNIVERSITY BELFAST |
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Session
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Speaker |
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Welcome and introduction 10.00-10.15 |
Chair – Keir Starmer QC |
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An academic overview 10.15 – 10.45 |
Graham Ellison, QUB |
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Investigating the police – an insider’s view 10.45 -11.15 |
Dame Nuala O’Loan Former Police Ombudsman |
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Coffee break 11.15 – 11.30 |
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Criminal Justice Under the Microscope 11.30-12.00 |
Kit Chivers, Chief Inspector Criminal Justice Inspectorate |
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Policing the Past 12.00-12.30 |
Dave Cox, Historical Enquiries Team |
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Response 12.30-1.00 |
Professor Colin Harvey, QUB and Jane Winter, BIRW |
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Final comments and close 1.15 |
Chair – Keir Starmer QC |
record of proceedings
KEIR STARMER QC
CHAIR’S OPENING REMARKS
I should like to welcome to this seminar on “Accountability in Transition”, a very timely seminar. The last ten years has witnessed huge change here in Northern Ireland, and in particular change in the institutions and how they work. One critical aspect of that has been change in accountability mechanisms and change in approaches to accountability. Everybody will be aware of the large number of oversight bodies and institutions in Northern Ireland and the various work that they do, sometimes separately, sometimes overlapping. Perhaps in Northern Ireland there is more oversight than anywhere else in Europe or even the world. Some posts have come and gone, for example the Policing Oversight Commissioner’s post, which came to an end last year, the Commissioner for persons detained as terrorist suspects has gone, as has the Commissioner for military complaints. So there has been a huge amount of change and change is continuing. This morning provides an opportunity to take stock, to look at what’s been happening in the last ten years, and to ask some of the questions that need to be asked: has oversight worked? has it made institutions and individuals more accountable? has it affected behaviour? does Northern Ireland need so much oversight in the future? In order to discuss those questions we have a very distinguished panel of speakers, as well as a number of distinguished people in the audience.
My own experience, together with my colleague Jane Gordon, has been in monitoring the performance of the Police Service of Northern Ireland in complying with the Human Rights Act. That is something I have done from 2003 until two weeks ago, when my appointment finished. It has been a very interesting journey for me, for the police, and for the Policing Board. I established at the start of that process three principles that I think are relevant for monitoring generally, not only for the police. First, that it was the performance of the police overall that had to be monitored. It very rapidly became apparent that the failures would be pretty easy to detect, because they would be flagged up through complaints, through issues being raised at the Policing Board, through news items etc. Every time there was a critical incident that went wrong, it would come to our attention, but when things went right, that would not necessarily be the case. An armed response where the situation was defused and nothing happened would be much harder to monitor than the same situation where something went wrong. So the first principle was performance as a whole, and that is quite a challenge. Secondly, in monitoring the police’s compliance with human rights we were looking at current conduct in 2003, not looking retrospectively at how the police had acted in the past, so that aspect of monitoring was contemporary. The third principle that we established was that we would try to create what we called a positive dialogue with the police, which engaged both the person monitoring and the body being monitored, so that problems could be spotted as they arose and addressed in a sensible, transparent and professional way. That required a great degree of trust on all sides, and began rather nervously because obviously if the police are going to let monitors such as me, whom they had never heard of before, come over from London and sit in on their operations and really have access to any documents they produced, then there is a huge amount of trust that goes with that. Equally, there is trust the other way, which means faithfully reporting everything that we see, good, bad and indifferent. I think that this approach has worked well. In that process we have produced three annual reports which include many, many recommendations, and two special reports, one into the policing of the parades in Ardoyne in 2004 and another into the policing of the Whiterock parade in 2005, which resulted in a great deal of violence. What was key in that was that trust and transparency were critical.
One way of measuring how far accountability has come is shown by two examples. The first is that in Ardoyne in 2004 the military (it was a joint police and military operation), the police were subject to complaints that were investigated by the Police Ombudsman, to monitoring by myself and the Policing Board and our report, and to scrutiny by a number of NGOs. The military were not scrutinised by anybody, and when there was a suggestion of some investigation into the part played by the military, they said that they were not prepared to play ball and would not allow anyone access to their documents. This gave a very clear snapshot of accountability working in one sphere and not working in another. The second and more contemporary example is this. One of the big issues that we have had to grapple with in the past twelve months, and I know that everyone here has been thinking about it as well, has been the consequence of transferring national security matters from the police in Northern Ireland to the security services, because there was and is a huge concern that what was once accountable through the mechanisms for monitoring the police would be lost as it crossed the border into the security services, which have very different, and some would say far less effective, forms of monitoring. Interestingly, and I think positively, it was the police who insisted that there be principles in place for the transfer of national security to the security serves. It was the police who were asking for assurances that their ability to be accountable to those bodies who held them to account should not be diminished by the transfer. They drafted the principles and protocols and service-level agreements to try to ensure that their accountability was not diminished. Although I think that is a very positive thing at this stage, it does not mean that the problems of transferring have gone away, far from it. It highlights for me the need for and the importance of accountability.
The Chief Constable often is heard to say that he is the Chief Constable with the most oversight anywhere in the world, and that is true and that is good, and it has always been my response to him that it is of great benefit to the police. We start our discussion today looking at the accountability of all institutions and asking those critical questions.
Dr Graham Ellison, School of Law, Queen’s University of Belfast
An academic overview
I have been asked to provide a broad overview of a number of issues that affect police governance and accountability, with a specific focus on a number of policing and justice issues. I am going to adopt a fairly broad UK context, although I acknowledge that there a number of local, Northern Ireland-specific issues and that accountability structures in relation to police complaints and the Policing Board are different here, but there are national performance indictors that the PSNI have to adhere to, so some understanding of what is happening at the centre is also required.
It used to be said that the measure of a ‘just’ society can be discerned from the way that it treats its prisoners. In a similar fashion it is also possible to argue that the commitment of a state to democratic norms and values can be seen in the way that its police are organized. Policing is in this sense, a litmus test of the essence of democracy within the state. Authoritarian and repressive regimes are invariably associated with harsh and punitive policing systems that breach democratic norms and values and are involved in systematic human rights abuses. In such contexts regime policing is often the norm, whereby the primary role of the police is the protection of narrow sectional interests over that of the wider community or society at large.
It follows then that in many post-conflict and transitional states there is an absence of public trust in the institutions of governance, and the police in particular. Arguably, that was the case in Northern Ireland. Putting in place mechanisms to win or gain this trust therefore becomes one of the primary tasks of any peace-building effort. Of course, in any conflict there are various protagonists, and the lack of trust by marginalized and historically disadvantaged and subordinate groups is often paralleled by an opposing situation of what can be termed ‘hyper-trust’ among dominant groups who see their government institutions and their police as beyond reproach. Allegations of wrong doing, of human rights abuses, of heavy handed policing are seen as a ‘slur’ on the good name of the police and attributed to little more than propaganda. This creates particular difficulties for reformers since whatever new structures are put in place need to be robust to convince those most sceptical that things will change, but also to find ways to convince traditionally supportive groups – which would also include the police themselves – that reforms were necessary. Framing the parameters of the debate in human rights terms is one potentially useful way of going about it.
The paradoxes of accountability
When discussing the accountability of the police as a major institution of the state one is confronted by two paradoxes: The first of these is that fair and effective police work is essential for democracy and that the police are required to use their powers to provide the minimal level of order for democratic freedoms to flourish. Conversely, the misuse of these powers can also be used to deny basic freedoms and thus undermine democratic values. Second, even in liberal democracies the police represent the embodiment of state authority. Policing in this sense is as inseparable from state authority as ‘the knife’s edge is from the knife’ in the words of Professor David Bayley. The police as the coercive arm of the state will inevitably enforce a particularistic conception of order that will be aligned more closely with state and dominant interests. Paradoxically, however, it is the state that is expected to put in place standards, mechanisms and protections to guard against the misuse of police powers, particularly in ways that do not overtly favour its own interests. In this sense the state must walk a tightrope between promoting its chosen conception of social order but do so in a way that does not favour its own interests by trampling over constitutional protections. As Trevor Jones has argued:
“...The paradox of police governance is that the state is both the ultimate source of a solution to the problem of police accountability and the main beneficiary of the reproduction of the specific order. Thus, the state must promote the best arrangements both to empower and constrain the police, but at the same time impose clear limitations on its ability to influence policing in its own favour” (p.606).
In Western democracies the public police, more so than any other agency symbolise the fault line between the State, the institutions of democratic governance and their legitimacy. In many respects the public police occupy a privileged position. Individually officers have powers that extend way beyond those of the ordinary citizen. While collectively, the organization as a whole has, in recent years anyway, emerged to become a powerful political actor in its own right particularly over the course of the past three decades. Considered historically, it would have been a brave Home Secretary indeed who would have risked antagonising a powerful and charismatic Chief Constable. While at pains to stay out of overt party politics, successive Chief Constables have managed to become highly skilled political operators and adept at steering and setting the parameters of debate around crime and criminal justice in ways that favour their organizations’ interests and which have been closely aligned with those of government. In recent years the somewhat belligerent stance of David Blunkett when he was Home Secretary – and the Police Reform Act 2002 – upset this traditionally cosy relationship between the police and government. By setting performance monitoring criteria for a number of forces that were seen to be ‘underperforming’, in New Labour parlance, and by streamlining the process by which a Chief Officer could be removed from office, this was a strategic attempt by the Home Office to reclaim some of the authority it felt had ceded, and to move towards much greater centralisation.
The essential point to remember is that policing is a fundamentally and inescapably political activity. Not only do the police enforce a general order which is necessary to make social conditions of life possible, but they also enforce a specific order which reflects dominant conceptions of race, ethnicity, social class, gender, sexuality and arguably age. I am not implying that Britain, for example, or indeed Northern Ireland for that matter, is in danger of becoming a police state. On the contrary, I think that some credit should be given to the nature and character of British policing, whereby almost uniquely in the industrialised world, large urban centres such as Great Manchester, as I know from having lived there for four or five years, are policed by mainly unarmed officers, and that, to me, is pretty unique. Of course, police officers can always get access to firearms if needs be, but by and large British policing is still unarmed. All that I am suggesting is that a failure to acknowledge the political role that the police play in the reproduction of order and the dominant values enshrined in it, can serve to mask the over-policing of minorities, the potential for abuses to occur, and a failure to provide universal standards of protection.
Debates about police accountability in the last five or six years or so have lost some of the ‘political bite’ (Jones, 2003 p.603) that they once had. At least in Britain the emphasis has shifted somewhat from ‘who controls the police’ to a more managerial concern with performance, effectiveness and service delivery. In some respects this is simply the result of the fact that politics has become less ideological and also the result of the successive government reforms over the years (Jones, 2003 p.603). In many respects the police organization of today, is under much greater scrutiny and from a wider range of sources (both internal and external) that that of yesteryear. Certainly, it is difficult to conceive of a situation developing today that confronted Sir Robert Mark when he took over as Commissioner of the Metropolitan police in the early 1970s and which involved widespread and systemic corruption within the Met. Nevertheless, there remain significant and recurring issues in relation to the policing of minority-ethnic groups (particularly around issues such as stop and search) while police tactics in the so-called ‘War on Terror’ raise a number of legitimate causes for concern.
Police Governance and Accountability
Police accountability has been described by some commentators as a ‘chameleon term’ (Jones, 2003: 605) insofar as it is associated with a diverse array of meanings and understandings. In general, though it is taken to mean: answerability, responsiveness, openness, efficient management, and obedience to external laws on the part of the police organization. For Brogden, Jefferson and Walklate (1988), police accountability is a multi-faceted term and it becomes an issue when:
“...there is public concern that the arrangements for ensuring that the police perform satisfactorily are not working. Such concerns may arise through dissatisfaction with the biased use of powers and wasteful deployment of resources to practices unacceptable to any section of the public; and, anything which in short, threatens to undermine any of their central obligations” (1988).
Historically the police of the United Kingdom have been accountable in three main areas: legal, democratic and more recently managerial. The legal premise is self-evident and police officers should be as accountable to the law as any other citizen. However, several problems become manifest if we rely solely on a legal accountability framework. First, as the socio-legal historian, Professor Doreen McBarnet argued almost three decades ago, ‘the law’ is permissive rather than restrictive and rather than act as a brake or check on police deviance or misbehaviour or wrong-doing it can actually enable or facilitate it. Expressed simply, her argument is that the imprecision and vagueness around many legal terms and police powers, such as the ‘reasonableness’ of force (lethal or otherwise) for example, mean that it is notoriously difficult to prove police-wrongdoing in a court of law. In any case, one need only look at another transitional context – South Africa – to see that many of the abuses perpetuated by the South African Police were conducted entirely within the law which was framed in such a way as to privilege the apartheid regime. On the rare occasions when it was found that a police officer had in fact acted unlawfully, this was usually put down to a technical point, rather than seen as a fundamental problem with the nature and the character of the law itself.
Second – and I think this is possibly more relevant to our situation – the framing of the law itself has inadvertently contributed to an enhancement of police powers in ways that obfuscated clear channels of accountability, and which are only now being rectified. One notable example concerns the 1964 Police Act for England and Wales which laid down the structures for police governance and accountability which remain more or less intact to this day. The 1964 Act, contained a statutory provision for Chief Constables to account for their decisions to the newly established Police Authorities. Fundamentally, however, it did not set down any statutory provision whereby a Chief Constable would be compelled to take account of a critical response. In fact, this situation was further problematised in the case of Blackburn vs. the Metropolitan Police Commissioner and given a legal footing in a crucial judgement by Lord Denning and which for some commentators remains ‘pre-eminent as the authoritative statement of the constitutional status of the police in domestic law’. Lord Denning’s judgement elevated the autonomy (or operational independence) of the Chief Officer in to the stratosphere and made it difficult, if not impossible to remove an ‘out of control’ chief officer. This exact situation came to light during James Alderson’s notorious ‘voices from God’ speech in the 1980s.
In terms of democratic accountability the 1964 Act established what is still referred to as the Tripartite system. Although this has been amended and tweaked over the years by subsequent legislation its essential essence remains in force. This was an attempt to provide a system of three-way checks and balances between the Police – represented by the Chief Constable; the Community – represented by newly established Police Authorities – and central government. The ostensible aim of such an arrangement was that no one side could dominate the other, and that policing would be governed by the healthy tension that existed between the component parts. Of course, research has demonstrated that in practice this system was often a ‘bipartite’ one with the police and central government tending to dominate. Arguably, over the years Police Authorities have had their powers progressively eroded with a gradual shift in power towards the centre.
However, in spite of this some countervailing tendencies are in evidence. This shift to the centre has been characterised by a parallel emphasis on devolving the governance of the police downwards and outwards towards local structures (community safety partnerships for example). However, it is debatable whether the kind of participation that is encouraged accurately reflects the views of those most alienated from the police. There is a danger that such shared-governance initiatives end up being police, rather than community led. Furthermore, the plethora of agencies and partnerships established as a result of these local governance initiatives can serve to muddy the waters insofar as a clear line of accountability can become difficult to discern. In fact, there is something slightly schizophrenic about New Labour’s commitment to devolved police governance and local partnership arrangements. Devolved tendencies have in the main, I think, been counter-acted by centralizing tendencies. Indeed, in Northern Ireland, and in spite of rhetoric to the contrary, the Northern Ireland Office has been keen to keep its finger in the pie of any number of policing and security arrangements, however, peripheral and marginal they might appear and this is something that Mary O’Rawe and myself are working on at the moment.
The final strand in the accountability canon concerns the widespread adoption of New Public Management discourses in the 1980s and 1990s. In particular, the then Conservative government’s emphasis on the three Es – efficiency, economy and effectiveness – in the public sector, which were belatedly translated to the police organization in the aftermath of the Posen Inquiry. This subjected the police organization, as never before, to the vagaries of market-led reforms and where the emphasis was on Best Value, efficiency, effectiveness in fighting crime, mission statements, short and long-term policing plans and so on. This managerialist turn in policing was pursued with vigour by the New Labour administration in the 1998 Crime & Disorder Act and later in the Police Reform Act of 2002. While not without problems, the changes brought about by New Public Management have subjected the police organization to considerable external and internal scrutiny about how police resources are directed and used, particularly in the setting of policing plans and performance monitoring criteria. For the government, and New Labour in particular, the police are no longer a bottomless pit as far as money is concerned. Similarly, the national sweep of these performance indicators and monitoring criteria (such as the National Policing Plan for example) has dented, though not completely eroded, the operational independence and autonomy of Chief Constables who are now subject to much more bureaucratic and administrative interference from the centre. On the one hand, this has enabled Chief Constables to be scrutinized to a far greater degree than before. On the other, excessive bureaucratization can impede the police in the pursuit of their mandate, with huge amounts of time taken up with shuffling paper and attempts to respond to a continual barrage of government directives. Furthermore, there is the danger that managerialism can become a ‘paper’ form of accountability; a check-box exercise that is disconnected from the realpolitik of policing on the ground.
By and large the story of police governance and accountability in England and Wales at least over the course of the past thirty years has been a broadly positive, though not entirely unproblematic one. The plethora of internal and external checks, oversight mechanisms, governance and accountability structures means that there are now very real limits to what the police can get away with. In the current climate it would be virtually impossible for a police organization to engage in systemic corruption on the scale of the Metropolitan police during the early 1970s, for example. Likewise, it would be unthinkable for a contemporary senior police official to publicly address a delegation of black police officers as ‘our coloured brethren, or Nig-Nogs as they are affectionately known’. The public disquiet around issues of police racism and the Stephen Lawrence murder have at least sensitised officers to what they can say - at least in their public pronouncements.
That said, there remain very serious questions around the use and misuse of police powers; the over-policing of minority groups; the abrogation of many fundamental rights and constitutional protections in the context of the War on Terror; and issues around police effectiveness in dealing with crime in urban working class communities. In fact, future challenges will make the accountability of the police, or perhaps more accurately, the accountability of policing a more salient issue. It is now well accepted in the literature that the landscape of late-modern policing is becoming increasingly pluralized or multilateralized into a plethora of agencies. Some of these are based at the level of the nation state, some are transnational, others are supranational, some are commercial, others are hybrid. Commercial security providers are increasingly finding a new niche in the realms of state security and high policing, quite often at the behest of nation states but where the lines of responsibility and accountability are incredibly blurred. It is difficult to tell what the likely upshot of all this will be. But what is not in doubt is that the incredibly fractured terrain of 21st century policing has raised important questions about how we govern security and how the proliferation of these agencies can be rendered accountable.
In addition, the War on Terror has raised equally serious questions around the nature of police powers. On the one hand there is the growing national (and international) trend towards “connecting the dots” and rationalizing security agencies, personnel and mentalities. What we are increasingly seeing here is a vertical integration of “high” and “low” policing forms, which in the best haute police tradition will mean that security policing will be even better placed to colonize a whole strata of routine enforcement activities. One example here concerns the implications of MI5’s role in security policing in Northern Ireland, which I will come to shortly, but another more generic examples concerns the way that ‘Community Policing’ at a low level has been officially incorporated into an overall homeland-security strategy in the United States.
Finally, I would like to make a number of remarks about where I see the current situation in Northern Ireland going or developing. It is important to remember, however, that prior to the reforms of the Patten Commission, and the establishment of the Ombudsman’s Office, the structures for police governance and accountability mirrored in spirit those that I have just outlined for England and Wales. However, in each of the three areas the structures were seen to be fundamentally deficient.
Legal accountability
Prosecutions of RUC officers who were alleged to have broken the law were few and far between, and when such prosecutions did occur (and they could probably be counted on the fingers of both hands) the judiciary took a sympathetic line. Following the acquittal of four RUC officers charged with murdering four members of the IRA in November 1982, Lord Justice Gibson congratulated the officers for bringing the dead men to justice, ‘in this case the final court of justice’. There were few checks under emergency legislation, with for example, no records of persons stopped, detained or questioned ever kept by the RUC.
If, as Maguire notes, police complaints have always been something of a “live issue” (1991, p.177) then this was never more so than in Northern Ireland. While there were structures in place to deal with complaints made against the RUC these were not independent of the police and as a confidence inspiring measure proved less than satisfactory. The substantiation rate for complaints was often less than 1% out of the many thousands received annually, while for those made by individuals arrested under emergency legislation it was, as Mary O’Rawe puts it, “to all intents and purposes zero”. However, these low substantiation rates were at variance with the large payments in civil damages awarded to complainants by the RUC every year.
Democratic Accountability
It is undeniable the old Police Authority for Northern Ireland faced a difficult, and for its individual members, dangerous job. However, it is difficult to argue in any meaningful way that the Authority performed a strong oversight role in relation to the governance of the RUC. Institutionally it was hobbled to a far greater degree than authorities across the water, having fewer powers, with its membership being appointed solely by the Secretary of State. Nevertheless, even allowing for this, it took a rather restrictive view of the powers that it did have and saw itself more as the public relations arm of the RUC, rather than a body dedicated to holding the force to account. Unfortunately, this unconditional support for the RUC was not reciprocated. One Chief Constable, Sir John Hermon, could barely conceal his distain for the PANI, once referring to it in terms that I cannot repeat here. Another - Sir Hugh Annesley – also felt able to refer to it as ‘bunch of well-meaning, good intentioned, amateurs’.
Similarly, the structures for the local governance of police were equally unsatisfactory. Community Police Liaison Committees were predominantly, middle aged, middle class, Unionist and overwhelmingly supportive of the RUC.
Managerial Accountability
The Patten Commission was virtually unable to conceal its surprise at the under-developed nature of the RUC’s administrative and managerial procedures. I don’t have time to outline the issues, but little in the way of cost-accounting for policing went on with the Northern Ireland policing budget increased year upon year, without question. In the defeat of terrorism it seemed that policing was a bottomless pit as far as money was concerned.
The current situation
I think that Northern Ireland has progressed a long way in terms of policing. Certainly, compared to the majority of international reform efforts, the change process in Northern Ireland can be regarded as having been successful – albeit perhaps more so in an organizational rather than a cross-community participative sense.
The pace of the reform effort was undoubtedly hindered by the lack of cross-community willingness to engage with the PSNI. However, that situation may have changed with Sinn Féin finally agreeing to take its seats on the Policing Board and the District Partnership Boards. In relation to the Policing Board, while we should recognize that progress has been made, in terms of providing a realistic assessment of how well it has performed its role to date, it is perhaps useful to think in terms of “thin” and “thick” responsibilities and functions. In a “thin” sense - of formalised procedural accountability and oversight - the Policing Board can be regarded as meeting the ICP remit of holding the chief constable to account, monitoring recruitment levels, publishing short and long-term policing plans and so forth.
However, the ICP saw the Policing Board’s remit as extending beyond a “thin” formalised procedural accountability function to develop a “thicker” conception of policing governance which would involve other agencies besides the public police and consult widely and transparently with the public. For example, as the ICP noted the “The title ‘Policing Board’ is deliberate. We see the role of the new body going beyond supervision of the police service itself, extending to the wider issues of policing and the contributions that people and organizations other than the police can make towards public safety” (ICP, 1999 p.29). While the accountability and oversight structures in their “thin” sense appear to be working satisfactorily – though not entirely unproblematically – it is less clear that the Policing Board has up to this point fully embraced its wider function, and it is perhaps here that the vision of the ICP has been lost.
However, to my mind the most fundamental aspect of the reform process that has been invaluable in enhancing the legitimacy of the PSNI has been the establishment of the Office of the Police Ombudsman for Northern Ireland. This has been described as the “Rolls Royce” of police complaints mechanisms. For those who have been traditionally marginalised and alienated from policing structures in Northern Ireland, the independence of the office has been essential. Without the establishment of the Ombudsman’s Office I feel that the entire police reform process would have stalled years ago. In a sense the Police Ombudsman’s Office has developed a dual mandate. Not only does it investigate complaints against the police but it has also assumed the role of surrogate “truth recovery” vehicle by launching a number of high profile investigations into past RUC activities. The willingness of the Office to take on such cases, has I feel, been crucial in enhancing the overall legitimacy of the new policing arrangements.
Conclusions
To conclude. In any transitional context the issue of restoring trust in public institutions is vital. This is even more important in somewhere like Northern Ireland, given the legacy associated with policing in the past. Similarly the latest attempt at devolved power-sharing holds, and given Sinn Féin’s recent (if qualified) endorsement of the PSNI, there is no reason why the various mechanisms should not click into place. Arguably, Northern Ireland has some of the more far-sighted and robust procedures for police governance (particularly in terms of accountability, oversight and complaints mechanisms) that exist on these islands, not to mention the normative (and statutory) emphasis on human rights which is placed centre-stage in terms of police operational policies, strategies and procedures. In this sense, the changes that have occurred in Northern Ireland may indeed have gone some way to providing the framework for the establishment of democratic and accountable policing structures. Only time will tell.
One final point that I would like to highlight in passing concerns the legacy of counter-terrorism expertise drawn from Northern Ireland. To a significant degree the context of global insecurity and the ‘War on Terror’ has enhanced the stock of retired and serving Northern Irish police officers whose expertise in counter-terrorism is rapidly becoming ascendant – certainly without, and to some extent within the PSNI. To be sure, in its earliest manifestation this was mainly the prerogative of ex-RUC personnel (particularly from Special Branch), who have been resurrected as global security consultants and counter-terrorism ‘experts’ – indeed one retired Special Branch officer made over 20 separate speaking engagements on ‘counter terrorism’ within the United States in the space of twelve months. Equally, according to a recent article in the Belfast Telegraph MI5 has been actively recruiting retired special branch officers for its new offices in Belfast. However, in something of a coalescence between the old and the new, the PSNI has increasingly availed of its reservoir of institutional knowledge to position itself – and this is where the danger lies – as a key player on the global counter-terrorism circuit as well - for example, as with the Leadership in Counter Terrorism project that the PSNI has recently launched. However, we might legitimately question the degree to which lessons can or indeed should be drawn from counter-terrorism expertise in Northern Ireland. After all it was counter-terrorist policing that created such vocal demands for police reform in the first place, being firmly linked to the dynamics of conflict. None of this is to suggest that a State should not have the right to take all reasonable steps to protect its citizens from threats to their security. It is however, to suggest that given the historical legacy of policing in Northern Ireland, and security policing in particular, it is important that such activities are at least conducted within the norms that govern a democratic society. This is perhaps one of the lessons from Northern Ireland that we might do well to remember.
References
Brogden, M., Jefferson, T. & Walklate, S., Introducing Policework, (1988) Harper Collins
Jones, T. (2003) ‘The Governance and Accountability of the Police’ in T.Newburn
(ed) The Handbook of Policing, Willan Publishing
DAME NUALA O’LOAN
Investigating the Police – An Insider’s View
Good morning, Ladies and Gentlemen. I am very pleased to be with you this morning, and I would like to thank the organisers of this conference for the invitation to speak today.
The topic which I have been asked to contemplate has many facets. I will start on the basis that, following the many reforms in Northern Ireland, we are moving towards the ideal of equitable policing, by which I mean policing which is community centred, but internationally responsive, which is delivered without fear or favour and which is delivered with the consent of the people and on behalf of the people. If this ideal is achieved, policing will be a force for justice and peace, peace in its widest sense – contributing to a society which is socially and economically viable and which cares equally for all its members. I will talk of policing in the twenty-first century, of some of the challenges, and I will consider whether accountability of policing has contributed to the changes in policing and has actually generated change.
I think it is very important to place on record that in Northern Ireland now the Police Service of Northern Ireland are accountable to the same degree as police forces in England and Wales; there is no additional accountability. The Oversight Commissioner which did exist is gone; its function was to monitor the implementation of the Patten recommendations, most of which were achieved – not all of it, but most of it. The Policing Board has the power to bring someone else in, as do policing authorities in England and Wales. So now we have the same levels of accountability as anywhere else, and that is an important marker.
Policing must be capable of operating locally and dealing with national and local crime. Equally it must be capable of operating internationally to deal with two of the great threats to peace – organised crime and terrorism, without damaging trust in the rule of law – trust which is essential for the effective operation of policing and security across the world.
Let me first say a word about the work of the Police Ombudsman, although many of you are probably familiar with it. There are new systems of police accountability in England and Wales and Ireland. The Police Ombudsman is the oldest of the three new institutions, and was established in 2000. The IPCC, the Independent Police Complaints Commission, in London followed in 2004 and the Garda Ombudsman Commission was established last year. The difference between my office and the IPCC and the Garda Ombudsman was that they both handed the bulk of the work back to the police for investigation. My view from the day I was appointed was that people had to understand that this system was independent and that a process of handing complaints back to the police for investigation, although it is provided for by statute, would cause confusion and would reduce the confidence in the organisation which had been created for the people and for the police. I therefore took the view that we would not hand a single case back for investigation by the police – my successor may take a different view, but that was my view, and that was the primary thing that distinguished us. I think it was the primary thing which made us.
I will now move into the past tense because I want to refect on what we did. We provided a service to investigate allegations of police misconduct, and we also looked at policy and practice failures by each of the five police services which operate in Northern Ireland. In doing that work we used every power conferred by statute, and this statutory basis was of the utmost importance. When I look at organisations across the world which aspire to police accountability the principle difference between those that are effective and those that are not effective is the statutiry basis on which they operate. We were also governed by a whole host of other legislation which regulates the process of criminal investigation, such as the Criminal Proceedings and Investigations Act, the Regulation of Investigatory Powers Act, and we could go on and on. I think at the last count there were 38 pieces of legislation which regulated the office which I held, and those were of direct, not just general, impact.
Generally, we investigated matters which occurred during the previous 12 months, but we had also a power to investigate old cases of any age, if the allegation was of grave or exceptional misconduct and where there had been no previous complaint or, if there had been a previous complaint, there was new evidence. We received over 21,000 complaints involving over 30,000 allegations in seven years. If somebody said the police were involved in what had happened and the police did not arrest, that was two allegations, but one complaint. It was a massive amount of work.
At the end of my term of offfice we had, I think, a budget of £9m and a staff of 151 people. That included the staff required to do the work generated as a consequence of the work of the Historical Enquiries Team, which Dave Cox will talk about later. We operated across Northern Ireland and provided a service 24/7, and we always turned out within an hour and a half in Belfast and within three hours everywhere else. The staff were representative of the community we served from day one, and that was simply by the application of proper recruitment processes; we simply went for the best person for the job. They were 46% Protestant, 45% Catholic and 9% other religion or no religion. The complainants reflected a similar spread of the population.
We had full police powers – of arrest, search and seizure, entry and access to all police materials and information. We could and, when necessary, did arrest police officers. My view was, and my instruction was, that this would happen only when it was absolutely essential and there was no other method available. We did try on many occasions to encourage those officers whom we ultimately arrested to come to us for interview, but if we had a situation in which there was an allegation that a police officer may have committed an arrestable offence, we had the duty then to investigate that offence, and if the police officer refused to come for interview then there must be an arrest, there were no two ways about it. There were officers who went into the public domain in the television and the media and talked very extensively about the extent to which they had co-operated, but having put their toe into the water had retreated and were refusing to co-operate, and in that situation it was essential to arrest people like Jonty Brown, was arrested because he would not come and talk to us. I think that is an important thing to say, too.
We did not just investigate complaints, though. We got cases from the Chief Constable, the Secretary of State, the Policing Board, and more recently from the Director of Public Prosecutions if there was evidence that he had found that a police officer had perjured himself in the course of a trial. The requirement for an investigation was also identified by the judge in the Omagh trial, and he referred to us the question as to whether police officers in giving evidence may have misconducted themselves, and that matter is still under investigation. Cases were referred also by our Criminal Cases Review Commission, which is examining the safety of convictions in Northern Ireland. The CCRC sent us, for example, the case of a young man who was convicted of murder on confession evidence in a Diplock Court. There was a suggestion that police officers may have fabricated the confession evidence, which was untenable, it just did not stand up. His conviction was overturned by the Court of Appeal. We investigated this and made the necessary recommendations to the Prosecution Service. Finally, we have the ability to investigate without a public complaint, just on the initiation of the Ombudsman, and that was a very important power too.
Let me tell you about one of our complaints. It involved a young man arrested for a crime. He was taken to a police station and was being fingerprinted. On video recorded in the police station, he could be seen apparently saying something to the policeman, then the policeman pushed him violently and he crashed over a chair banging his head against the door. That police officer was convicted of assault and dismissed.
Here is another example. This came to us from an American Observer at a parade. It is an important case because of a number of issues that arise from it. This lady filmed a convoy of police landrovers leaving the scene of some public disorder. All was quiet again. Nine landrovers left the area peacefully. They went up the road and they all turned left. On the right of this area was an area of waste ground. The tenth landrover veered onto wasteground towards a group of people who were watching the police leave. That police driver was convicted of dangerous driving and is no longer a police officer. After his conviction he appealed and lost his appeal. Then he went by way of case stated to the court of appeal and his conviction was set aside. He was retried and was convicted again, and the last I heard was that he was going to judicially review the judge who convicted him.
Where police officers do wrong, those who investigate them have to be very tenacious, and witnesses have to be well looked after to try and ensure that they remain available for the trial. Our American Observer, for example, had to come twice to Northern Ireland to give her evidence in this case. We have had situations where we have been very clearly aware of witnesses who may have been intimidated by other members of the public, so there are issues around witnesses and their protection.
Any death which may have resulted from the conduct of a police officer must be referred to the Police Ombudsman. Every death in custody is investigated, as are deaths where the last person to see the deceased was a police officer.
So what makes this such a difficult job? Many things, but there is among some still a perception that policing needs to be protected from criticism, and that criticism can never be constructive. When it became necessary to articulate police failure what I found in many, many instances was polarisation. There was a group of politicians who invariably, no matter what we had said, would either ask questions about how much we had spent on the enquiry or would try to rubbish it. They were a very small group of politicans, and once I had worked out that they amounted to no more than ten of the population of Northern Ireland, I was able to get on with business. The media too were split in similar ways. The issue seemed to be that people were either for the Ombudsman’s office and accountabilty, or they were against it. It was not a matter of what police officers had actually done. It seemed to me to be like a “shoot the messenger” scenario. For example, when I published the McCord Report both I and my staff were accused of very serious criminal offences by a senior retired officer from the Police Service of Northern Ireland. We had not committed any criminal offences, serious or otherwise, but that allegation was the outcome of one of our investigations.
Policing in Northern Ireland is normalising, as our society moves away from the Troubles. One of the ways we could see that was that the pattern of our complaints changed dramatically over the seven years . When I was appointed almost 50% of our complaints were about oppressive behaviour (assault, intimidation and harassment by police officers). When I left, that was only 36%, which was a massive change. I used to ask the Policing Board about the massive amounts paid out in compensation to people who had made allegations of police misconduct, and that figure has dropped dramatically – I cannot say by how much becuase the Policing Board has not published the fact – but it has dropped amazingly. Always remember that peopel would not for the most part claim compensation for njuries that they sustained at the scene of a riot, because to do so would put them at the scene of the riot, and you can work that out for yourselves. The other area of complaint was about failures of duty. When we started about 23% of our complaints were about failures of duty. Now it is a completely different picture. Some 39% are failures of duty and only 36% are assaults and other such allegations against the police. So there are more failures of duty, which means that people have greater expectations of the police. There is much less use of batons and guns. AEPS have only been used in a very limited number of cases. I believe that the police need AEPs. Tasers are under trial at the moment but have not been used. CS Spray is is use and has proved effective in reducing the level of injury inflicted by the police in the course of policing.
That normalisation reflects two things. One is that policing is changing. The other, I believe, is that there is much greater community acceptance of the need for policing, and the desire to work with the police, and that can be quite a diffficult thing for people to come to. Sometimes the beginning of these activities of engaging with the police could be quite faltering. For example, on occasion I was asked to go into a community so that they could explore what co-operation with the police might look like; how they could engage; what the risks might be, and how they could be assured that the police will not abuse them or harass them, because those were all issues for people moving into the constitutional process. They were sensitive and difficult conversations. Sometimes we would go back again into the group, bringing the police with us, and allowing them to have the conversation with the police in our presence, and then withdrawing and allowing the police to talk to them alone. That was all around building confidence, but they were important encounters. There was a trust in the office that allowed that to occur.
I did see part of the consequence of my job as being the improvement of policing. We did this by investigating not just the officer on the ground who allegedly did not do what he should. We looked at his managers – the sergeants and inspectors and the senior officers. The new Code of Ethics for the Police Service provided under Article 10 for a duty to supervise and manage, so we did discipline senior officers – superintendents and chief superintendents – for a failure of that duty. 82% of people believed ultimately that we contributed to improved policing.
We had a lot of historic cases, and they were massively important and are massively important. Some of our most difficult cases were our historic cases. These cases involved victims who were civilian, both Catholic, and Protestant, police officers, soldiers, prison officers. They came from every part of our community. Some came as complaints, and some came because of the work of the Historical Enquiries Team. The Chief Constable cannot investigate any matter where the actual conduct of the police may have contributed to a death; that is the job of the Police Ombudsman.
I think it is very important to say too that the duty of a police officer to investigate a death does not terminate a year after the death; it does not terminate five years after the death; it is a duty in law which continues in law unless and until the crime is solved. So I do not think that we can say that because we live in Northern Ireland we have a different set of standards, and we are not going to investigate the deaths of the Troubles. To me that is not sustainable if we adhere to the rule of law.
I think of Sam Devenney who died some time after a vicious attack by police officers in his little front room in his home in Derry in 1969. Sam Devenny was injured. So were his young children. The family could not understand why there had been no proper investigation and no prosecution. We found that the Northern Ireland Government had declared an amnesty in respect of all crime committed at the critical time. The amnesty lasted six months. There could be no prosecution, even if the actual officers who attacked Sam Devenney and his family had been identified. People had forgotten the amnesty in the maelstrom that followed. A Chief Officer publicly apologised to the Devenneys for what had happened at an event in New York in 2003.
I think of 15 year old Paul Whitters shot in the forehead by a plastic bullet fired by a soldier as he threw stones. We investigated that very difficult case.
I think too of Sean Brown, murdered by Loyalist paramilitaries, in Bellaghy, Co Derry in 1997. Sean Brown was a great GAA man, and local people believed that the police had colluded in his murder. Documents were not to be found. It was a poor investigation. But there was no collusion. We reported, recommending a new investigation, even though we knew that the passing of time meant it would be very hard to bring his murderers to trial. The Chief Constable publicly accepted the findings. After that the people began to co-operate and I believe, that one Sunday after a GAA match at the ground at which Sean Brown was abducted and murdered, the local GAA asked people to co-operate with police in the investigation. It was a significant moment in the development of a new relationship between police and people.
What did our people think of us? 86% believed that we were independent. We made evidence based. recommendations for the prosecution of police officers when they had to be made, and we moved to ensure that officers are disciplined where necessary. When policing had been properly conducted we said so. When officers have acted bravely, we said so. Where what has gone wrong is not the fault of a junior officer but rather a failure of management or supervision we will deal with that failure. 78% believe that we are impartial. 84% think we are fair. And even police officers who have been investigated and are anonymously surveyed are reporting high levels of confidence – 92% of officers who had been investigated, believed the investigator was impartial, 84% believed they were fair and 92% believe they are professional.
It really is a quite different situation from that which existed before my Office came into existence. When people see officers convicted of criminal offences, when they see officers dismissed, required to resign and disciplined after a complaint they grow in confidence in the police complaints system. When we explain that officers have not been properly trained and that for that reason we are recommending training rather than discipline, they generally understand why we are doing this.
Of course not everyone is satisfied, and not everyone believes that they system will work. We had much to do. We could only work with evidence. Evidence comes from witnesses. So we had to be able to assure people that it is safe to be a witness or a complainant and that they would not be harassed by police if they complained. The service we offered had to be a service which was accessible to the people, and so if you wanted to complain you could walk through the door and you wiould be seen within four minutes. You did not have to fill in a form. We visited the complainant where necessary. We did all we could to secure evidence. We sought medical, technical and other expert evidence. The important thing is that when an officer has done wrong they be dealt with, and when they have done no wrong that too must be articulated. One of the big changes we saw is the reduction in the number of peopel who complain and then do not co-operate – it has fallen from some 62% under the old procedures to 28% in 2007.
We, too, had to be, and were, accountable – both to Parliament and to a procession of Commissioners who examine my work – the Criminal Justice Inspector, the Surveillance Commisioner, the Interception Commisioner and many others. It is right that this should happen.
Our society must have a police service in which all the people have confidence (other than those engaged in serious crime who never appreciate the police). Our people’s attitude to policing is changing. In some areas it is quite slow. In others the change is more marked. People are working with the police, sometimes discretely and sometimes overtly. Policing is changing. We now have a police force which is 23% Catholic – and that means that probably up to one in three of the officers out on the ground are Catholic. It is making a difference. We have a long way to go, and on our journey we need the support of everyone, so that we can ensure that we do all we can to ensure that policing is Northern Ireland is professional and accountable, that it is equitable.
As the economies develop north and south, crime is moving onto another plane globally. We are rapidly seeing the development of international organised crime and terrorism. Police officers have extensive statutory powers available to them to fight such organised crime and terrorism. When things go wrong in policing, there has to be an effective process for investigation. In the absence of that, as we saw in Northern Ireland, suspicion, anger and distrust grow. Policing will not be effective in that context. My former office has total access to all necessary information with the proper safeguards for that information, some of which will be secret. If I could look a member of the public in the face and say that I was satisfied because I had seen the intelligence that what was done was done properly, or if I came to the conclusion that those who are charged to protect life and property failed in their duty and state that fact, then people will have greater confidence, and community confidence is the key to belief in policing and in the fight against both organised crime and terrorism.
In Ireland, north and south, we are at significant risk of the further development of organised crime. Our land borders and our small island status make us an attractive gateway into Europe and into Great Britain. There are those for whom people trafficking, smuggling, money laundering, and drug trafficking are a way of life. There are people who see potentially great benefits to be derived from exploiting the opportunities presented by the structures and geography of Ireland north and south. Policing must protect society from these threats. It will only be able to do so effectively if it operates with the consent and support of the people, and if the various police services co-operate well across borders.
In contemplating the twin problems of organised crime and terrorism, and any possible oversight of those charged to act to protect and maintain law and order in a state, there are many factors which must be taken into account. There are those whose job is to intelligence gather with a view to preventing and disrupting any crime of any kind. There are the police services whose function is to protect life and to prevent and detect crime, as well as the intelligence services in relation to terrorism. There are also those whose job is to oversee the police and the intelligence community. That role takes different forms in different countries. My colleagues and I worked with those responsible for developing oversight systems from as far afield as Iraq, Turkey, Brazil, South Africa, Macedonia, Venezuela, Georgia, the United States, France, Canada and Romania.
Policing techniques, for the prevention, disruption and detection of crime are developing rapidly. Here, a number of different organisations have lawful authority to carry out different investigatory methods – such as covert and intrusive surveillance. The exercise of some of these highly technical methods of fighting crime are subject to supervision as well as accountability [a Surveillance Commissioner, oversees the operation of CHIS (covert human intelligence sources) and the collecting and gathering of intelligence by police, the Interception of Communications Commissioner oversees the legality of telephone interception processes – this appears to be a fairly obscure mechanism – it has been known for a person to complain that their phone is tapped, to be told we can’t tell you if your phone was tapped, but if it was it wasn’t unlawful. Finally we have an Intelligence Services Commissioner who keeps under review the issue of warrants by the Secretary of State authorising intrusive surveillance (e.g. eavesdropping) and interference with property in order to make sure that the Secretary of State was right to issue them.]
It is a complex web of investigation and oversight mechanisms. In Northern Ireland primacy in counter-terrorist matters, intelligence gathering and counter-terrorist operations now lies with MI5 not, the police. We had, by statute, a complete right of access to all materials held by the police even in their conduct of the national security function. The Police Ombudsman has now lost the statutory right of access to all intelligence held. The statutory right of access will only run to intelligence material held by the police. Does it matter?
Over the past thirty-six years the people of Northern Ireland have lived with varying levels of terrorist and criminal activity. Probably the majority of families have been touched in some way by the Troubles. Although there have been cease-fires since 1994, we have still been subject to terrorist-related violence from various sectors of our community.
Today we have fairly sophisticated counter-terrorism legislation, but the powers conferred by that legislation must be used very carefully with constant regard to the human rights of all who are policed. One of the biggest dangers of counter-terrorist policing, and of the policing of international serious organised crime must be that it will grow the very problem which it seeks to defeat.
The US are now operating a process of internment without any proper legal process in Guantanamo Bay and other locations. We had internment without trial of people suspected of involvement in activities against the state from 1971 – 1975. It is widely thought in Northern Ireland that it was a significant recruiting agent for the IRA. It is a chilling thought that the Guantanamo Bay processes could act as a recruiting agent for Al Qaeda.
In Canada a man called Mr Maher Arar was sent to the United States, then on to Syria via Jordan as an international terror suspect following the receipt of information from the RCMP to the US authorities. In Syria he was tortured and detained without trial. Mr Arar was an innocent man. His treatment has caused huge difficulty in Canada which finally established a Commission of Enquiry led by Justice O’Connor which produced a damning indictment of those responsible for all that happened to Mr Arar. O’Connor says that the information provided by the RCMP came from Syria and was probably the product of torture. Mr Arar received, I think, $10m from the Canadian government.
Repressive policing, even when it is intended to deter, prevent or detect serious crime is, on balance, more likely to be counter productive than it is to be effective. The way in which things are done and the attitude of those who do them are very important. For example, if properties, particularly domestic properties must be searched, then there clearly can be no warning. But it is possible, and should be good practice, to carry out a full risk assessment of who is in the house, whether there are any children, pregnant women, elderly people or other vulnerable people, and to take all this into account in the strategic planning of any search. This will enable the minimum use of force. In 2006 we did a major investigation into PSNI searches of domestic residences, and made many recommendations aimed at making searches effective whilst minimising inconvenience, distress, and community disruption.
Similarly excessive use of stop and search powers under the UK’s Terrorism Act will undoubtedly be as counter-productive as such activity was under its precursor the Prevention of Terrorism Act.
The use of informants and of intrusive and covert surveillance tactics is key to the infiltration of organised crime and terror groups and the prevention of high level criminality. Properly used informants can be very effective. There are however limits. There are requirements by most nations that certain people cannot be recruited as agents except in the most exceptional of circumstances. Recruitment of youngsters under the age of 18 as informants is regarded with wide-spread hostility in most places. It requires high level authorisation, and should only be done in the most exceptional circumstances and in absolute compliance with the law. Other people who are recruited will very often be engaged in some form of crime. Our law requires that any criminal participation by an informant be controlled and managed and properly authorised. Where this does not happen, informants can become involved in very serious crime and there is a very serious risk that their handlers will start, at best, to lose control of the informants. Whether they be police, army or security service informants they must be scrupulously managed, as must those who handle and control them.
Last year I reported my findings in response to a complaint made by Mr Raymond McCord who alleged that there had been no proper investigation of the murder of his son Raymond, and that over the years the police had protected a particular individual and his associates, some of whom were informants, from arrest and prosecution. But more importantly, and more terrifyingly, we identified a series of collusive activities, things like destruction of records, interviewing people and writing up false interview notes, handing explosives back when they had been deactivated, not going and collecting guns when information was given in about their location. The report is on the website and contains pages and pages and pages of unexplained activity. All we sought to do was to put those issues to the police officers who were involved at that time. A number of retired officers would not engage with us, but some of them did and answered very difficult questions, but the reality was that, where we could find no explanation for what had happened, the only conclusion I could come to was that this was collusion. The definition I used of collusion was the Stevens definition, because it is wide but precise and it can actually be applied, for example, to wilful failure to keep documents, and it stands up in law. My report identified a serious lacuna in the policies and practices of the RUC/PSNI over the years, and I was pleased that I was able to report the responses of the PSNI to the many recommendations which I made for the proper handling and management of informants and their information.
I think there are lessons to be learned from that case and others for the international community, one of the most important being how not to do things, as well as how to conduct effective investigations [Nuala: I have paraphrased here].
Informants, whether they are CID informants or National Security informants, almost invariably come from the communities on whom they inform, although in Northern Ireland there were a number of informants who came in from outside the particular community. If a community becomes the subject of repressive policing, which may be targeted at reducing or preventing serious organised crime, that community may easily turn inwards and become very antagonistic to the police. It may even act to root out those who are suspected of collaboration with the “enemy”. In Northern Ireland informants were routinely murdered if they were discovered. Very often they were tortured by their captors before they died in an attempt to establish the extent to which the particular unit or organisation had been compromised. They were then left in an appalling condition, usually on a deserted country road, as a warning to anyone who might contemplate becoming an informant. So they have to be protected as well as managed. They can be the source of vital life-saving intelligence.
There are, of course, other much more sophisticated ways of finding out what criminals are doing. Interceptions and listening devices and many other techniques will bring vital intelligence, but the law must always be one step ahead of the serious criminals who will seek such equipment to destroy it.
Communities with high levels of crime can become very dangerous places for those who live there and for those who seek to police them. There is now, in policing, a recognition of the importance of community policing to counter these risks. Police must do all they can to ensure that local communities do not come to regard the police as their enemy. Community policing must develop before there is a problem in a particular area. Things like racism among the community and in the police and security services, which can result particularly from perceptions about groups of criminals, is not only wrong but it is most dangerous, for it will undermine the fight against crime. People must on all occasions be treated with respect and courtesy. Anything else will alienate the people. Once alienated it will be very hard to undo the damage. This has been the experience of police forces across the world.
As I contemplate this issue of the prevention, disruption and detection of global organised crime and terrorism, and the future arrangements in Northern Ireland for such matters, I find myself constantly pondering on these issues, and in particular on the contribution which can be made by agencies such as the Office which I held. My experience as Police Ombudsman has taught me that whilst organisations may create and embrace proper structures for the processes of gathering and managing intelligence in order to protect national security, and also to enable the fight against organised crime, there may be those within those organisations who do not embrace the values, and who become corrupted sometimes by a noble cause corruption which separates them from proper policing activity, and which ultimately may lead them into criminality.
The risks are obvious – that informants, who often move in a shadowy world of crime, will become involved in serious crime and that they will draw their police handlers into crime. So the criminal who wants protection for his activities, can be the informant who informs his handler of the existence of a consignment of drugs, so that the handler can recover part of the consignment. This gives the handler and the informant credibility. Sometimes they may share the profits on the remainder of the consignment. The handler is corrupted. The informant gets paid for his work. And sometimes, the informant gets involved in really serious crime which cannot be authorised by his handlers. The handlers know of the involvement but do not want to apprehend the source because they are valuable to them as handlers. And so the criminal becomes stronger and more self-sufficient, but the handler still needs him, and so the handler goes on paying for information, whilst the criminal goes on committing crime. It happens. It happens in ordinary crime and it happens in the terrorist context.
In Northern Ireland we saw situations in which on occasion the forces of the state colluded with terrorists against a common perceived enemy, perhaps by supplying details of people to be targeted, or by allowing murderers access to their victims, or by failing to act on intelligence received.
To prevent this organisational management processes are vital. However things do go wrong and then it is profoundly important that there is an accountability mechanism which is capable of establishing what has happened and how it has happened. If for example a police officer is told by an informant that a crime is about to take place, but does not pass that message on, perhaps because to do so would place at risk the very source of the information (the informant), and so the crime is neither prevented or detected, then it must be possible to track every stage of events. It must be possible to examine the passing of the information by the informant to the police officer, what that police officer should have done with the material, who had management responsibility for the informant. We must be able to assess the reliability of the information and of the informant, the way in which information should have been disseminated, and what response there should have been to such information, were it disseminated in accordance with the rules. And were the rules right in the first place? Similar questions must apply to information which is gathered other than through human sources.
Global terrorism and organised, international crime are inextricably linked. This will never be an easy battle. It will require every available technique and strategy and great courage in those who seek to counter organised crime and terrorism. It can only be done with the help of the people. So too the fight against crime inside a country will be harder for the police if they do not have community support. When things go wrong, especially when people die, the finger of blame can be pointed at those who have responsibility for protecting citizens. Then independent accountability mechanisms can provide a measure of control and of re-assurance to the citizens and to law abiding and professional police officers (and they are the majority).
Equitable policing will be a force for justice and peace. I believe we have a police service in Northern Ireland which has made massive strides on its journey. It was my privilege to work with so many dedicated and professional colleagues to establish the office which I held for seven years. It was a challenge though.
DISCUSSION
Asked a question about overlap between the work of the Police Ombudsman and that of the Historical Enquiries Team and the adequacy or otherwise of the resources available, Dame Nuala responded that there is indeed overlap, which leads to duplication and inefficiencies in the system. In her view, the current system was not sufficiently efficient or effective or what is really required. The Eames/Bradley team on dealing with the past were looking at these issues. It had long seemed to Dame Nuala that there should be a single, effective, independent mechanism, which may or may not be part of a larger truth-recovery process, because there is a duty in law to investigate unsolved crimes. Such a mechanism which would absorb all the HET’s work and all the historical work of the Police Ombudsman’s office, and bring them together, independent of the PSNI, which would then meet the Article 2 requirement of independence. It would have to be properly funded, but it would be time-constrained because it would be dealing with a finite number of cases. The police would be free to deal with current policing, and this organisation would deal with the past. It would face an exceptionally challenging task, because as time goes by it will become increasingly unacceptable to say some of the things she has said in her reports and at today’s seminar, and that her successor Al Hutchinson will have to say.
Kit Chivers
Accountability and independence
There is always a tension in the criminal justice system between accountability and independence, and indeed between the independence of the agencies and their management or governance as a whole.
I want to talk today especially about how accountability can be enhanced in the new arrangements for governance of the criminal justice system following devolution, but before I do that it may be worth spending a few minutes mapping out the different sorts of accountability to which the CJS is subject and the mechanisms that contribute to that accountability, so that we are clear what we are talking about at different stages of the argument.
Accountability in the CJS
I would like to distinguish three sorts of accountability, though obviously they are
all related to one another:
All of those are really important characteristics for criminal justice agencies. They are important for any public bodies, but openness and accountability are especially important in the justice field because justice is about the exercise of the power of the state, which is an inherently dangerous thing. If ‘justice’ is done in secret and without reasons being given it very rapidly ceases to be justice at all. That is why in CJI’s inspection matrix Openness and Accountability constitute the first heading against which we assess the criminal justice agencies.
If you want accountability, you need to have democratic institutions which can perform the task of holding the agencies to account, and that has been the problem in Northern Ireland. To be brutally honest, none of those sorts of accountability – not even the accounting for money - has been exercised as effectively as it should be in Northern Ireland under direct rule. There has been an absence of scrutiny and debate in democratic fora, and I shall come on to talk about how I hope the devolution of policing and criminal justice will help to rectify that. The media, of course, provide a form of accountability, but they work to their own agenda; and the courts – including the European Courts – also provide a means of holding public bodies to account, but they are no substitute for a political process.
Northern Ireland is well endowed with bodies which provide the raw material for accountability: inspectors, auditors, monitoring bodies like the Human Rights Commission, the CAJ, British Irish Rights Watch and our admirable Ombudsmen and complaints commissioners, but without a forum which can give sufficient time to the public debate of these issues their excellent work can be of only limited avail.
Audit accountability
I would guess that the majority of those present today will mainly be concerned about the accountability of the justice system for the decisions it takes in individual cases and the way in which it treats individual defendants, witnesses and prisoners. But I want to draw attention also to the importance of accountability for finance and management, because unless those are adequate the service provided to ‘customers’, including the extent to which their rights are respected, is liable to be unsatisfactory.
There is a huge amount spent on the CJS in Northern Ireland: it is a multiple of the corresponding expenditure in the rest of the United Kingdom, and there are good historical reasons why that is the case. The main focus of the additional expenditure has been the concern about security: the money has not gone on service to the customer. Prisons are an example. Our cost per prisoner place is two to three times what it would be for similar establishments in the rest of the UK, but the service to prisoners in terms of the provision of offender courses, education, training and preparation for release is comparatively poor. The extra money goes on a high staff/prisoner ratio, and it is all about security and all for historical reasons which are no longer valid.
The PSNI presents a similar picture, with a relatively high number of officers delivering a service which is, by comparison with most similar forces in Great Britain, not all that great. The Chief Constable was on record last week talking about clearance rates and they are not good. These things are part of the legacy of the past, and they can not be expected to change overnight, yielding a huge ‘peace dividend’. But it is important that there should be steady public pressure for improvement, on a realistic timescale, or progress is likely to be very slow. And that brings us to the question of accountability. One of the reasons why progress is slow at present is the extent to which the criminal justice agencies are shielded from accountability under the current regime.
True, the Policing Board holds the Chief Constable to account for expenditure and performance against the Policing Plan, and it does it well. I do not want for one minute to detract from the good work the Policing Board does. But, despite having ten political representatives on it, the Board does not look at the issues in the way the Assembly would. There is not the immediate pressure of democratic accountability which asks whether we should be spending so much on this service, rather than on health or education, in relation to what we are getting from each service. The Policing Board holds the police to account within a relatively narrowly defined frame of reference.
I stress that I am a supporter of the Policing Board as an institution. I think it needs to be preserved and strengthened. But it is only realistic to suppose that, once there is a Justice Committee, Assembly Members will use that forum, and the Assembly itself, to air current issues on policing. The Chief Constable will inevitably be called to give an account of himself to the Committee as well as to the Board, and it will be the Committee’s proceedings, rather than the Boards, that will be televised. The day to day business of holding the Chief Constable to account will remain with the Board, but the high profile incidents, like the Quinn murder or the Northern Bank robbery, will be aired first and foremost in the Committee. No protocol or concordat is going to stand in the way of that political reality.
Other agencies of the criminal justice system have comparatively little democratic oversight at present. The Public Accounts Committee at Westminster has hardly ever (has it ever?) examined areas of the CJS in Northern Ireland. The Audit Office does but they do not tend to get looked at by the PAC. The Northern Ireland Affairs Committee has done stalwart work, and some excellent thematic reports have issued, but it is not its job to monitor the CJS on a continuing basis. CJI inspects the agencies and writes reports, but there is no forum at present in which its reports can be debated. The public in Northern Ireland is dependent on the media to provide the public forum, and of course the media is highly selective about which subjects it thinks worth its while to cover, and has its own agenda on how to tackle the issue.
That is perhaps the strongest argument for devolution of policing and criminal justice. The Assembly and, in particular, its Justice Committee, will provide the forum for regular questioning of the agencies and for the use of the Inspectorate’s and other bodies’ reports. CJI has already found the value of being able to give evidence to Committees. The other powerful argument for devolution is the coherence argument, the fact that criminal justice interfaces with many areas of social policy which are already devolved, such as health, education, social housing, community safety and social services.
The Assembly is going to mean a sharp increase in the amount of governance the CJS will face, and basically that is all to the good. But we need to bear in mind that this is a small jurisdiction, in which the criminal justice agencies are headed by relatively small teams of individuals who could easily be overwhelmed by too much scrutiny. It will be important that those responsible for holding the agencies to account do it rigorously but at the same time exercise self-restraint. And of course the Inspectorate will want to play its part in that. We need to keep things manageable, and there may be scope for rationalising some of our supervisory bodies as we move forward.
Independence and management of the CJS
The agencies of the CJS are very keen to stress their independence, but that has to be balanced against the need to ensure coherent management of the CJS. I think this tension between independence and accountability really needs to be focussed upon. The CJS is a system, or at the very least it is, as the Lord Advocate of Scotland said at the CJS conference last month, ‘an ecology’ in which the different players are all interdependent and, as it were, symbiotic. Someone needs to plan for the CJS as a whole, to determine consistent policies for it on subjects like Avoidable Delay, Hate Crime, or the treatment of Victims and Witnesses. And someone needs to allocate and re-allocate resources to the agencies. There is no hope of getting efficient and effective management of the CJS if the different agencies are allowed to go their own ways, determine their own priorities and bid for funding independently of one another.
One of the problems in securing adequate accountability for the performance of the CJS is the difficulty of measuring the quality of the service being provided. It is a particular problem with policing, because the range of activities is so vast, and very often the main measures of success are the degree to which things do not happen. If we have a year without any serious further offences being committed by high risk sex offenders does that prove the effectiveness of our management arrangements, or is it just luck? To be honest, there would always have to be a degree of luck about it, because we know that no arrangements are ever going to be foolproof. We are always just managing down risks, not eliminating them.
There may be statistical validity in tracking the trends of increases or falls in particular types of crime, but very often there are external factors behind the trends, such as the technical improvements in car security and even home security, the greater availability of cheap drugs, and changing social trends which influence patterns of offending. Some aspects of police performance can meaningfully be benchmarked against most similar forces in England and Wales, but often there are underlying differences even from those forces which explain differential performance and there is a danger that one ends up comparing performance on the basis of a very limited and unrepresentative sample of indicators. Just as ‘what gets measured gets done’, so what gets measured (even if it is measured unreliably) is what provides the basis for comparisons, and what can not be measured is likely to be ignored.
I spoke last month about my fear that the agencies of the CJS are to far too great an extent managed by reference to selected short-term targets, rather than being managed holistically with the right sort of long-term developmental perspective. When we are holding them to account we need to take that broader view, not just asking them whether they achieved X, Y and Z as stated in their Business Plan for the year, but trying to assess whether the organisations are developing their assets, becoming stronger and more capable and delivering the sort of service the ‘customer’, however defined, would want to receive.
Independence and accountability for individual case decisions
The most difficult area, both now and probably also under the devolved regime, is the question of accountability for individual case decisions.
At the management level the principle is very clear: the police, prosecution and courts have operational independence, so that no Minister can, or should ever be in a position to, order the arrest of someone or influence the decision of the Director of Public Prosecutions to prosecute anyone, or (it goes without saying) influence the decisions of a court.
Independence in relation to individual case decisions is perfectly compatible with co-ordination of policy and resources. There should be no problem about guaranteeing that in whatever structure we end up with. I do not think we should exaggerate the difficulty of ensuring that independence or let it lead us into unnecessarily complex administrative solutions. The problem arises at the other end of the process, when questions are asked about whether the right decisions were taken.
So far as the judiciary are concerned, there is a high degree of scrutiny and accountability through the appeals process, which is (normally) entirely in public. Judges give their reasons fully and rigorously. There is little scope for politicians to add value through the discussion of individual judicial decisions. The media will sometimes pick up a case where the sentence seems unduly lenient, but unless one has studied the case, heard the evidence and read the judge’s summing up carefully and has a knowledge of the precedents and sentencing norms it is hazardous for any person to second guess a court. It is reasonable for lay persons to raise questions, but it must be for the Prosecution Service and for the Appeal Court to decide whether there is anything to the complaint. If politicians are tempted to go further they will quickly learn the unwisdom of doing so.
As regards the police, the police no doubt make mistakes, but PACE is there to make sure that most of the time no great harm is done: if we can just leave on one side for a moment the current debate about lengthening the period people can be held without charge for terrorist offences, for the general run of offences nobody is held unreasonably long just on the say-so of the police; there is a right to bail unless there are compelling reasons to the contrary; and any misconduct by the police is subject to the rigorous independent scrutiny of the Police Ombudsman.
The main complaints about the police that would be likely to surface at the political level would be complaints about failure to investigate properly or failure to handle forensic evidence properly, as we heard in the Sean Hoey trial. These are all matters that can be looked at case by case by the Police Ombudsman, and there should be a strong presumption that that is where they belong: the Assembly and its Justice Committee would not have much to contribute until the Ombudsman had reported, at which point they could debate his report and ask the Chief Constable whether he proposed to act upon it. Another sensitive topic is the use of informers, and I shall come back to that presently.
That leaves the Public Prosecution Service, where there is at present rather limited public accountability for individual decisions. It has to be recognised that the business of giving reasons for prosecutorial decisions, and specifically for decisions not to prosecute, is a complex field, and that the PPS has improved in this regard in recent years, partly in response to the recommendation of the Criminal Justice Review on this subject. The Director made an important on-the-record statement about 18 months ago about the Service’s practice regarding the giving of reasons, explaining the constraints the Service was under where, for example, the safety of individuals was at stake. Nevertheless there is nowhere at present, and there will be nowhere under the devolution proposals, where any person – either the DPP or the Attorney General – can be questioned about such decisions.
It was interesting to hear from the Lord Advocate of Scotland that she can be, and is, questioned in the Scottish Parliament about decisions not to prosecute, and she gives an explanation whenever she can – which she said was about 75 per cent of the time. The Parliament understands, and is prepared to accept, that in the other 25 per cent of cases for a variety of considerations reasons cannot be given in public. Scotland has an entirely different legal system, and it is hazardous to draw direct parallels, but I am sure the example of Scottish practice is worth reflecting upon.
In practice, in cases where the PPS feels that it cannot give reasons, very often the simple declaration of that fact leads the media and the public to an immediate conclusion about the status of a potential witness, namely that he was an informant or a state agent in some capacity. Sometimes it is legally impossible for the PPS to be explicit, but silence does not always help to protect human rights.
Perhaps the best thing that can happen in such cases is for the police to inform the PPS at an earlier stage if there is a state agent involved in a case. Problems arise when the PPS is presented with this information after a prosecution has been launched, which is a public event. If they knew at an earlier stage a prosecution might never have been brought.
The use of informants (or CHIS, as it is known in the trade) tends to be seen as distasteful, but it is an essential tool of police forces and security services in all countries, even in those with the most liberal regimes. There is in RIPA a well-developed legal framework for regulating the use of CHIS, designed to ensure that all intelligence gathering is conducted in accordance with human rights. It would be good for the Justice Committee (or, as with the Policing Board, a sub-committee) to receive regular briefings from the relevant services on this work.
These are activities which are conducted legitimately on behalf of all of us, and if MLAs have questions about them they should have the opportunity to ask the responsible agencies face to face and receive an honest account of the policies and practices of the agencies, without of course having access to sensitive operational detail or going into matters of national security. They should also hear from, and be able to question, the Surveillance Commissioner and the Investigatory Powers Commissioner for Northern Ireland to check that rigorous inspections are being made and that the rules of RIPA are being complied with and that accords with what Nuala was saying about the weaknesses she found in the McCord case.
Complaints: accountability for the handling of individual cases
Finally, I would like to say a word about the importance of good complaints procedures as a tool for ensuring accountability. The Criminal Justice Review said that complaints handling was “an essential part of effective accountability mechanisms”, and it recommended (Rec. 16) that systems should be “accessible, understood, administered sensitively and expeditiously, and having an independent element where appropriate”.
CJI undertook a review of complaints handling in the criminal justice system last year. The most important area is of course complaints against the police, handled by the Police Ombudsman, whose office we had inspected separately a year earlier. The service provided by the Police Ombudsman is a model of its kind, and is internationally recognised as good practice.
Policing is the most important service, because that is where the overwhelming proportion of the public’s contacts with the criminal justice system take place. But other services deserve attention too. And here we found that the picture was inconsistent. Most criminal justice agencies had a system of appeal or independent oversight of their complaints system, but the oversight bodies had different remits and different legal status. Inspectors have nothing against the concept that independent agencies should be able to have their own bespoke complaints systems which suit the requirements of their businesses. However, we do believe that there is scope for developing a system of unified, independent oversight of complaints within the compact jurisdiction of Northern Ireland. We recommended that consideration should be given to forming a single complaints oversight body to fulfil the role of an external, independent assessor of complaints for all the main criminal justice agencies in Northern Ireland.
I cannot end without mentioning the position of the Prisoner Ombudsman, since I know there is concern about this and a lot of sympathy, which I share, for Brian Coulter personally. Most of you will know that he has tendered his resignation because he was dissatisfied with the status of his office, which was not fully independent but was lodged within the NI Prison Service. It seems evident that the post was mis-described as an ‘Ombudsman’ post, when it was in reality more of an internal complaints commissioner. Brian Coulter has done excellent work as Prisoner Ombudsman, and his reports have been highly informative, but I wonder whether devolution may not offer us the opportunity to re-name the post to reflect its actual status and transfer the external oversight of prisoner complaints to a genuinely independent body?
In a way, it would be logical to extend the functions of the Police Ombudsman to give him oversight over all complaints within the criminal justice system, but that would be seen as diluting his focus on the police, and it may be too early for such a change. Alternatively, the responsibility for overseeing complaints arising in the prison service and in other criminal justice agencies apart from the police could be given, upon devolution of criminal justice, to the Assembly Ombudsman, who already has the title of ‘Commissioner for Complaints’. I believe that would be the right solution at this stage. At some stage it may be that external review of all complaints against public services in Northern Ireland can become the responsibility of the Assembly Ombudsman, but that time is not yet.
David cox, director, historical enquiries team
POLICING THE PAST
Thank you very much for the invitation and the opportunity to come here and
talk through some of the issues which certainly confront the Historical
Enquiries Team (HET). I think I may be the only police officer in the room,
so I am certainly pretty accountable today.
I am going to just run through a presentation that we give to people. It explains the role of the HET. I won’t linger on all the slides because we have got to keep moving. We will perhaps talk more about the issues that relate to the accountability under discussion today. But firstly I will just mention a couple of things that previous speakers have said. The role of the Ombudsman in investigating the past and the cross-over with the Historical Enquiries Team is a massive issue for us in terms of best use of resources, and in terms of jurisdiction, and it is certainly an issue that requires to be addressed rather better than the current somewhat cumbersome legislation allows. But it has shown the value of looking at the past in what the Ombudsman has achieved and continues to achieve. Something I, myself, had some experience of: before I took this role I was the officer with day-to-day charge of the Stevens investigation into the murder of Patrick Finucane (perhaps a little more of that later). I think the one thing that Nuala mentioned which I would heartily endorse is the relevance of time to these cases is minimal. What is the past? What is the definition of the past? For the families who come and see me in my office and tell me their tragic tales, this is not a past issue for them but a today issue. It is current policing issues, and a current responsibility for the police to deal with. It is no different from the Metropolitan Police re-investigating Rachel Nickell’s murder on Wimbledon Common all those years ago or Damilola Taylor. The only difference in Northern Ireland is the sheer volume and perhaps the complexity of some of the cases.
So the Historical Enquiries Team set up in 2005 to look at the deaths that occurred during the Troubles. Our first task was to find out how many there were, there was no consolidated record. The PSNI (the former RUC) didn’t have a consolidated database of all the victims. Our best effort at the moment suggests that there are 3,234 people who were killed as a result of the security situation; and that involved 2,535 incidents, which accounts for terrible events like Enniskillen and the incidents on internment day in Ballymurphy where 11 people died in one day. That is why the number of incidents is different. The money we are getting over six years amounts to £34 million.
When we set up, our first task was to decide, if we are going to do that, what are going to achieve? Being cops we work very logically, where everything has a process and a system and an outcome. Most often the people we are dealing with or on behalf of know very little about it. We just get on and do it and at the end of it all we can say well we solved that or we haven’t solved that, or so-and-so is going to court. They don’t f
