- Rights Watch (UK), formerly British and Irish Rights Watch is an independent non-governmental organisation which has worked for almost 25 years in Northern Ireland supporting individuals who have been impacted by the conflict in Northern Ireland. As such we have worked extensively with a number of individuals who have ongoing cases being considered by the Historical Enquiries Team (HET), seeking truth and justice for families and loved ones.
- Until 2013 we helped individuals as they sought to get answers to questions about their cases through the process facilitated by the Historical Enquiries Team, with varying results. After the publication of the report by Patricia Lundy on the operation of the HET and the subsequent report by Her Majesty’s Inspectorate of Constabulary investigating issues identified in the report, we supported the suspension of HET investigations relating to cases involving actions by the police or military. Since that point we have had limited interaction with the HET and its processes, receiving a single response to questions asked in July 2013 in December 2014.
- This ongoing delay has caused additional distress to the families and victims who are engaged with the HET review process to that already caused by the revelations of the lack of independence and effectiveness of the HET. There is now a widespread loss of confidence in the HET and a feeling that any report emanating from it may not have any real value attached to it. There is instead a desire for a new process to be implemented, as has been suggested by the Haass report, with better safeguards to ensure independence, and oversight to guarantee effectiveness. RW(UK) would support the implementation of such a process.
- As an organisation we are now unwilling to engage with the HET in any new cases due to their failure to rectify problems within the organisation and processes identified by HMIC. We of course continue to support individuals who wish to engage with this process, but warn them that the outcome is not guaranteed to be independent, or swift. As such we believe that due to significant loss of confidence in the HET, its case files should all be transferred to a new organisation which meets the minimum standards of independence and effectiveness as guaranteed by the European Convention on Human Rights. The new body should be Article 2 compliant with the requisite resources and genuine political support to allow it to properly and promptly carry out investigations to ensure that the fragile peace in Northern Ireland is maintained and the past is transparently dealt with.
- NGO’s have raised the valid question of what might happen to all the documentation amassed by HET and concern has been expressed that the PSNI may have moved HET material to an unknown location. We are very concerned at any suggestion that outstanding reports, including those the HET had committed to reviewing, may now not be given to families.
- The proposal for a new structure within the PSNI – a new legacy branch that will not review all cases but will investigate those it regards itself as legally obliged to be not an adequate solution to fill the gap and address the disappointment left by the HET. We query whether the PSNI has the sufficient independence to deal with state involvement cases. This proposed solution to disbanding the HET lacks the independence and transparency required for achieving genuine justice that all concerned have been long waiting for.
- RW (UK) would support an Independent Commissioner for Truth (ICT) along similar lines to that of the Police Ombudsman. Ideally, the ICT would be appointed by an independent appointments board (possibly a judicial appointments board or the Policing Board), but in all likelihood s/he would be appointed by the Secretary of State.
- Since this would be a unique post there may not be a need to be too prescriptive about the necessary qualifications, although it should be someone with gravitas and knowledge of the law and human rights. The ICT would have its own independent staff and budget.
- The ICT would have the power to compel disclosure of documents and other evidence and to interview any relevant person. If one wanted to increase accountability, one could introduce evidence under oath, making prosecution for perjury available.
- The ICT’s remit would be to establish, so far as is possible, the facts about any death arising out of the conflict, whether the perpetrator is known or not, where no successful prosecution had been commenced within one year of the death (this would help to inject promptness).
- The ICT would be under a duty to share any information uncovered with the complainant, who must be a properly interested person, unless –
- it was necessary to withhold information to protect the right to life, or
- to protect the right to privacy unless the interests of justice dictated otherwise.
If it was necessary to withhold information, then what was withheld would be kept to a minimum, for example names and addresses. There would be no national security or public interest exceptions to disclosure.
- Complainants would be entitled to copies of all documents and other evidence, e.g. videos that would be discoverable in any civil proceedings. The owners of any such evidence, for instance the PSNI, would be entitled to make representations as to why the evidence should not be disclosed, but the ICT would be the arbiter. Judicial review would be available to challenge decisions of the ICT to disclose or not to disclose.
- The ICT would publish reports summarising his or her findings in each case, unless requested by the complainant not to do so. However, the ICT would be entitled to publish against the complainant’s wishes if s/he concluded that it was in the public interest to do so.
- The ICT would also have the power to make recommendations arising out of his or her findings. Notice of recommendations would be served on the relevant person or body who would have three months to publish their response. Failure to implement a recommendation would be subject to judicial review.
- The ICT would also lay an annual report before parliament, describing the work of the office in the preceding year and making any general recommendations arising out of the work that was not case-specific. The report would include statistics about complainants, victims and perpetrators; the time taken by the ICT to deal with cases; details of the number of case-specific recommendations made and the compliance rate; etc. The report would be published and debated.
- The PSNI, DPP, Police Ombudsman and any other relevant body would be put under a statutory duty to comply with any request by the ICT for disclosure, information or co-operation, and to establish liaison units to facilitate the work of the ICT.
- The ICT would be put under a duty to complete investigations within one year, and would be given the necessary resources to comply. To make this manageable, the ICT could impose a quota of cases (say 50 or 100) to be dealt with each year, and could put cases on a waiting list.
Lifetime of the Ict’s Office
Initially, the ICT could be appointed for a period of three years, with the appointer given the discretion to renew for periods of between one and three years thereafter, depending on workload.
Advantages of the Proposal
- The ICT is independent.
- It puts victims’ rights to the fore. It also facilitates closure and allows at least some people to move on.
- It covers all killings arising from the conflict.
- Such a mechanism would be cheaper than public inquiries and may avoid costly litigation.
- It does not remove any existing legal rights, but it may avoid the need for some litigation.
- It allows the PSNI and the DPP to manage the administrative burden of “cold” cases.
- Lessons learned from this process would feed back into policing and the administration of justice.
- It provides a potential model for dealing with other contentious deaths, such as deaths in custody.
RW (UK) will continue to assist our clients who are engaged with the HET review process and continue to produce material and analysis on behalf of clients. However, we have made it clear in the past (and we repeat) that the HET is not Article 2 compliant and has lost the confidence of the public. For the reasons set out, a PSNI legacy team would not be a sufficiently independent and adequate solution.
30th January 2015