Northern Ireland Policing Board – HET Working Group (Suppl. Submission):
Oct 2013


Response to Call for Submissions:
Northern Ireland Policing Board – Historical Enquiries Team (HET) Working Group

 

Supplementary Submission

Rights Watch (UK) (formerly British Irish Rights Watch)

Our Mission: Promoting human rights and holding governments to account, drawing upon the lessons learned from the conflict in Northern Ireland.

Our Expertise and Achievements: Since 1990 we have provided support and services to anyone whose human rights were violated as a result of conflict. Our interventions have reflected our range of expertise, from the right to a fair trial to the government’s positive obligation to protect life. We have a long record of working closely with NGOs and government authorities to share that expertise. And we have received wide recognition, as the first winner of the Parliamentary Assembly of the Council of Europe’s Human Rights Prize in 2009 alongside other honours.

Supplementary Submission: This submission is made in response to a further invitation from the Northern Ireland Policing Board (the Board) – Historical Enquiries Team (HET) Working Group and is supplementary to the original submission of Rights Watch (UK) sent to the Board in September 2013 and spoken to in a meeting with the HET Working Group together with other invited NGO’s having worked with client’s engaged with the HET on 12 September 2013.

Our work with the Police Service of Northern Ireland (PSNI) Historical Enquires Team (HET): We have assisted clients who have been engaged with the PSNI HET process since its introduction to Northern Ireland in 2005 replacing the PSNI Serious Crime Review Team (SCRT). We continue to assist clients through the PSNI HET process through attendance at meetings with the PSNI HET and through making representations which seek to inform the HET Review Summary Report (RSR) production process and then in the presentation of analysis of the RSR and in requesting further investigation or explanation as necessary and appropriate.

We have explained to our clients and to their instructed solicitors the position of RW (UK) on the possible future of the PSNI HET (if there is to be a future for it). Together with other NGOs we have attended meetings with the PSNI HET on policy aspects of its work including the issues of interviews under caution of state agents and the conduct of PSNI HET investigations of military cases (those cases identified where the perpetrator of the conflict related death has been a member of the British army). We briefed the HMIC Inspectors when they were commissioned by the Northern Ireland Policing Board (the Board) to inspect the PSNI HET and we were briefed by the HMIC when it published its Report. RW (UK) has extensive experience in the jurisprudence and policy of Article 2 compliant investigations.

As was noted at the meeting of the Board’s HET Working Group on 12 September 2013, one of the concerns raised since the publication of the HMIC Inspection Report of the PSNI HET has been that there are many families in Northern Ireland whose cases are either in process with the PSNI HET or where work on cases has been suspended. Of particular concern is that a number of cases have been possibly transferred into a unit of the of the PSNI. As an NGO, as noted above, we continue to assist families and relatives who approached us in relation to the case of their deceased relative being within the scope of a PSNI HET review. It is unclear from correspondence received from the PSNI HET what the status of work on individual cases within the HET now is. Since the initial meeting and decisions of the Board following the presentation of the HMIC Inspection Report , it is unclear what work is now being undertaken by the PSNI HET. This is particularly so in the absence of a senior management team to direct work following the suspension and resignation of Dave Cox and Paul Johnson, and the recent introduction of a senior management team from the PSNI.[1] We are also concerned regarding the status of those cases within the scope of the PSNI HET where there is no NGO support or legal representation assistance, noting the point raised by the HMIC on this issue.[2]

Those of our clients who are engaged in the PSNI HET review process and specifically in that part of the process where the HET RSR has been received and RW (UK) has produced an analysis of the RSR raising further questions which is now with the PSNI HET, want the PSNI HET to continue to work on the case and respond with either a supplementary RSR or pursue further avenues of investigation or liaise with other agencies. In addition, some of our clients are awaiting meetings with the PSNI HET following earlier PSNI HET statements regarding direct engagement and briefing. These meetings have not taken place.

(A number of our clients have successfully engaged with the PSNI HET process in relation to the murder of their loved one during the conflict and have been satisfied with the conduct of the PSNI HET review and conclusions of the RSR.)[3]

The Legal Status of the HMIC

The Board’s HET Working Group will be aware of the statutory basis of the HMIC. The legal status of the HMIC is relevant effect of the 20 Recommendations made by the HMIC of PSNI HET. The Police Act 1996 Section 54 gives effect to the HMIC in that the section states that inspectors of constabulary shall inspect, and report to the Secretary of State, on the efficiency and effectiveness of every police force for a maintained police area. The Police (Northern Ireland) Act 1998 enables the Secretary of State for Northern Ireland to appoint inspectors of constabulary, therefore giving effect to the HMIC in Northern Ireland following section 54 of the Police Act 1996.

The HMIC was granted further powers by the Police Reform and Social Responsibility Act 2011 which enabled a local policing body to make an inspection request to the HMIC (section 83 amending section 54 of the Police Act 1998 by a new section 54(2BA)) as opposed to the Secretary of State and enabling the HMIC to publish its reports without reference to the Secretary of State by section 84 amending section 55(1) of the Police Act 1996. By section 56(5) of the 2011 Act the amendments, repeals and revocations made by the 2011 Act have the same extent as the provisions amendment, repealed or revoked, therefore bringing Northern Ireland within the scope of the 2011 Act. This was the enabling power granted to the Board in making an inspection request regarding the PSNI HET to the HMIC.

Regarding the status of the Inspection Reports of the HMIC and specifically the recommendations, there is an important distinction between a regulator and an inspector, the latter agency not having mandatory authority to enforce its recommendations. Therefore, the 20 Recommendations of the HMIC regarding PSNI HET do not have force of law. This is the same as with other inspection agencies including Her Majesty’s Inspectorate of Prisons (HMIP). However, as the recently appointed Chief Inspector of Constabulary has commented in a speech to the Royal United Services Institute for Defence and Security Studies on the 29 April 2013:

“An inspectorate has a different kind of power – a softer power – and it is the power of its voice and the authority with which it speaks. It is for others, principally Chief Constables, the Home Secretary and police and crime commissioners, to act upon the reports of the inspectorate. As I have said, Parliament has invested in the Home Secretary and police and crime commissioners the right and the obligation to hold Chief Constables democratically to account.”[4]

In his speech to ACPO on 9 September 2013 the Chief Inspector of Constabulary said:

“For far too long, HMIC was thought by some – and in relation to recent years, quite wrongly – to be the police talking to the police. My first year in office has confirmed beyond all doubt that this is incorrect, and in recent years was incorrect. But it was what some people thought. HMIC represents, and talks to and champions the public, first and foremost. That can’t be emphasised enough. It is of the greatest import that the public know there is an independent, authoritative, objective and professional organisation serving their interests by inspecting and reporting on the police, its efficiency and effectiveness. Those are the statutory criteria given to us under the County and Borough Act 1856. It is HMIC’s core purpose and it hasn’t changed at all.”[5]

Therefore, even though the 20 Recommendations of the HMIC Inspection Report are not mandatory, they do represent the concerns of the public interest and require the PSNI Chief Constable to respond to them. In addition, the HMIC can conduct a follow up inspection to monitor the implementation of its Recommendations (similar to the HMIP). This implies that it is expected by the HMIC that the 20 Recommendations will be implemented in relation to the PSNI HET. Finally, the PSNI is governed by the Northern Ireland Policing Board and therefore if the Board has the political will to force the acceptance of the 20 Recommendations and to carry with it the endorsement of the Northern Ireland Assembly should legislation be required, then for the PSNI to ignore this indication would be woefully disingenuous of the PSNI (should the HET Working Group of the Board conclude there is a future for PSNI HET after further consultation)

In relation to the 20 Recommendations, RW (UK) reiterate our position that our analysis of the HMIC Inspection Report and the 20 Recommendations suggests that even if the 20 Recommendations were implemented in full the PSNI HET would a) not be Article 2 compliant and b) would not be able to secure the confidence of the public in Northern Ireland in the conflict related death legacy cases. It would not, in toto, be the PSNI HET. Most importantly, in light of the Amnesty International Report 2013 “Northern Ireland: Time to Deal with the Past” and the work of Panel of Parties (Haass), the Board’s HET Working Group should take the opportunity to make recommendations for an independent authority to investigate (not review) all the conflict related legacy deaths in a manner consistent with the procedural discharge obligation demanded by the jurisprudence of the ECtHR following the McKerr group of cases and subsequent jurisprudence and related comparable international human rights standards. It should make a stand as a political authority to a) ensure compliance with accepted ECtHR standards and b) demonstrate a commitment to the families and relatives of the victims of the conflict. As noted, despite the concerns regarding the status of the victims there remain obligations upon the UK state, as both protector and perpetrator in relation to the human rights violations incurred the during the conflict in Northern Ireland, including those injured, with or without victim participation.

Additional Comments

In addition to the analysis provided in our first submission to the Board’s HET Working Group we now add these additional comments.

  • We acknowledge the risk of re-traumatisation of victims through the process of review and investigation of conflict related deaths. However, if there has been a violation by the state of Article 2 either directly through the use of lethal force or indirectly through a failure to protect through omission or other factors, then the ECtHR jurisprudence on this point is clear that there must be an investigation to discharge the procedural obligation arising from that breach and that this is not time bound by any form of legal limitation. Victim participation is an element of the matrix of procedural obligations but the victim may decide not to participate. There is no coercion to participate to be exerted on victims but there is a duty on the state to investigate.[6]
  • We would include within the taxonomy of victims not only the families and relatives of those killed as result of the conflict in Northern Ireland but those victims as survivors of the conflict who suffered injuries. It would be necessary to analyse the investigative procedural obligations arising under Article 3 of the Convention in this regard but they are analogous to those arising under Article 2. The question of victim participation would again have to be worked through in this regard.
  • To discharge the Article 2 procedural obligation requirement the process must be independent in terms of governance. This means that when a question arises as to whether an individual case did have state involvement (including the allegation collusion as defined by Cory and Stevens and applied by O’Loan when Police Ombudsman, in its broad sense) this decision must be taken by an independent authority from the policing, security or military authority that might be implicated in the violation.

In any event the ECtHR judgment in Dimitriova v Bulgaria [2011] 44862/04 at 75 that “Even in situations in which there is no suggestion that a violent or suspicious death is due to official action, the authorities are under an obligation to carry out an independent and impartial investigation that satisfied certain minimum standards as to its effectiveness.”

  • Further on independence any investigatory authority which identifies police failure in a conflict related death or injury should assume the function currently located within the Historical Directorate of the Office of the Police Ombudsman for Northern Ireland. The systems identified for independence in our first submission could not be satisfied given the current governance structure of OPONI[7] even though it is a corporation sole. Importantly OPONI has no power to compel retired police officers. The vesting of power in a single individual is not a viable model for a robust mechanism of investigation in conflict related deaths given the complexity of the issues relating to the legacy.

Statutory status will be required to ensure Article 2 compliance including of any investigating authority, importantly, direct or advisory prosecutorial authority in conflict related death and injury cases if prosecution if deemed appropriate.[8] Without statutory authority with the power to prosecute either directly or to advise prosecution and to publish results of investigations in the absence of prosecution, the authority will not be able to investigate to the standard required by the jurisprudence because it will not have powers to determine the matter of state involvement, compulsion of witnesses, powers to caution, powers to publish findings and powers to authorise referral to prosecution as appropriate.

In addition, statutory powers will be needed in order to compel the disclosure of intelligence material held in the interests of national security. We have made it clear in our first submission the essential importance of access to and management of state intelligence in the investigation of conflict related deaths. We contend that regards to national security in relation to the conflict related deaths and injuries are outweighed by the demands of truth and accountability in the process of investigation these deaths and injuries. In any event the jurisprudence of the Convention makes it clear that even though Articles 2 and 3 are absolute rights juridical and political sensibility would require the proportionality principal to be applied (albeit in favour of openness and the rights of all victims)[9] to protect the rights of the state agents and actors implicated in the violations.

  • Whether the legal form of the authority established to investigate conflict related deaths is a sole or corporate entity its authority must be based on law. In addition its work must proceed on clear and published policy criteria. Without legal authority and published criteria, the authority will not have public confidence. Importantly the authority would bolster both the Rule of Law and the principal of justice in Northern Ireland in dealing with the complex legacy of the conflict. We suggest that this legal status must be legislated for by Westminster. This is because in matters of national security there has been no devolution of powers to the Northern Ireland Assembly and Executive on this issue. It would also demonstrate to the people of Northern Ireland the continued commitment of the UK government to resolve the legacy of the conflict related deaths in Northern Ireland.

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  1. See: http://www.nipolicingboard.org.uk/article/?id=14523
  2. See: “Secondly, we found that the families who choose to be represented by a solicitor or NGO – who, generally, are far more intrusive and probe the findings of the HET reports – are treated differently than those who are unrepresented.” http://www.hmic.gov.uk/publication/hmic-inspection-of-the-historical-enquiries-team/ page 16
  3. This point does not detract from our position that the PSNI HET has been fatally compromised by the findings HMIC Inspection Report and that the implementation of the 20 Recommendations of the HMIC cannot make the PSNI HET either Article 2 compliant or restore public confidence in its to make it a credible review agency within the package of measures to investigate conflict related deaths. Despite the fact that some families or relatives may be satisfied with the work of the PSNI HET or, in the state agency cases, may not want the PSNI HET in any form to re-investigate or review these deaths, where there has been a breach of Article 2 by a state agency directly by a violation or by a failure to prevent a violation , there remains a duty to invest stage according to the criteria of the ECtHR in the McKerr group of cases despite the will of the victim family or relatives. The victim family or relatives may not choose to participate in the process of investigation demanded by the procedural discharge requirements of Article 2, but that does not exempt the state, as the violator, from reviewing of investigating.
  4. See: http://www.hmic.gov.uk/media/hmcic-speech-policing-in-the-new-dynamic-environment-20130429.pdf
  5. See: http://www.hmic.gov.uk/media/tom-winsor-speech-superintendents-conference-2013.pdf
  6. The systemic failings of PSNI HET identified in the constructive observations of the HMIC is especially unfortunate in that those cases classed as closed by PSNI HET may need to be re-opened by what ever investigative body is developed to replace it. The decision of the PSNI Chief Constable to have the PSNI examine 13 military cases following the HMIC Inspection Report in defiance of the Board following the HMIC Inspection Report was particularly regretful and inapt in this regard.
  7. See An Inspection into the independence of the Office of the Police Ombudsman for Northern Ireland, Criminal Justice Inspection, September 2011 at http://www.cjini.org/TheInspections/Inspection-Reports/Latest-Publications.aspx?did=319
  8. We do not suggest all conflict related death and injury cases would lead to prosecution (if only because of the evidential problems in historic investigations) but that prosecution and punishment are options in the process of truth recovery.
  9. In the process of investigating conflict related deaths there must be parity between victims and no hierarchy of victims.