At its opening hearing on 24th May 2005, the Robert Hamill Inquiry indicated that it will approach any request for immunity from prosecution (or, potentially, disciplinary action) on a case-by-case basis, and Counsel to the Inquiry has indicated that the Inquiry hopes that any such requests will be few in number.
British Irish Rights Watch recognises the need to ensure that all necessary witnesses give full testimony to the Inquiry, and that some potential witnesses may be reluctant to answer questions or give information if they believe that they might be subject to subsequent criminal proceedings or disciplinary action as a consequence. We do not, however, support the granting of a general undertaking to all witnesses that the evidence they give to the Inquiry could never be used against them in such proceedings, and we therefore support the Inquiry’s case-by-case approach. It is the very purpose of the Inquiry to establish the facts surrounding the murder of Robert Hamill, and, in order to satisfy the requirements of an “effective investigation” under Article 2 of the European Convention on Human Rights, the Inquiry “must be able to lead to the identification and punishment of those responsible” for the murder [Jordan v UK, ECtHR, 2001, Application number 24746/94, paragraph 115, emphasis added]. To grant a witness undertaking to all potential witnesses, particularly senior government and police officials, could deprive society of the possibility of holding them accountable for their actions and any undertaking given should be consistent with Article 2 requirements.
The Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights (ICCPR) and provides authoritative interpretations of the rights contained in the Covenant, issued its General Comment No. 31, in March 2004 [General Comment No. 31 , CCPR/C/21/Rev.1/Add.13]. This Comment provides the Committee’s views on the nature of the general legal obligation incurred by states that have ratified the ICCPR (including the United Kingdom). It notes that Article 2, paragraph 3, of the ICCPR requires that individuals have accessible and effective remedies to vindicate their rights under the Covenant. In particular, states must create domestic administrative mechanisms to give effect to the general obligation to investigate allegations of human rights violations promptly, thoroughly and effectively, through independent and impartial bodies. The Committee further points out that where such investigations reveal violations of rights contained in the ICCPR, the relevant state must ensure that those responsible are brought to justice. Failure to bring perpetrators to justice could itself amount to a violation of the Covenant. The Committee concludes that “accordingly, where public officials or state agents have committed violations of the Covenant rights [including the right to life]… the state parties concerned may not relieve perpetrators from personal responsibility, as has occurred with certain amnesties and prior legal immunities and indemnities.”
Other United Nations human rights bodies have also been working on the issue of ensuring effective remedies for victims of human rights violations and an end to impunity. In April 2005, the UN Commission on Human Rights adopted a set of Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law [E/CN.4/2005/L.48 – copy enclosed]. The Basic Principles reaffirm that the obligation to respect, ensure respect for, and implement international human rights law includes the duty to “investigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law”.
British Irish Rights Watch acknowledges that there may be some individuals involved in the Robert Hamill case who, because of their relative powerlessness, may fear that they will be scape-goated if they give evidence about their own actions and the actions of others. The use of a witness undertaking to provide an incentive for such individuals to give evidence may be appropriate in such cases. However, more senior public servants, including senior police officers, should not be granted a witness undertaking because as senior public servants they should not require incentives to tell the truth to a public inquiry. We would recommend that the Inquiry only request the Attorney-General to make a witness undertaking in relation to the fewest possible number of witnesses and only in cases where it is obvious that the Inquiry will not be able to reach the truth otherwise. We recognise that the Inquiry will be concerned to keep costs at a reasonable level, and that there may be some cost implications to taking the case-by-case approach. We do, however, believe that classes of witnesses may emerge who should or should not be granted a witness undertaking, and we would encourage the Inquiry to explore this avenue in order to keep costs down.
We also recommend that the Inquiry should require those witnesses who wish to be granted an undertaking or immunity from disciplinary action to apply for it, before the Inquiry makes a request to the Attorney-General or other relevant public body. This should ensure that the number of witnesses granted such undertakings or immunities is kept to a minimum.
A further consideration that we would encourage the Inquiry to bear in mind when deciding whether to make a request for a witness undertaking from the Attorney-General is that individuals involved in implementing a policy may not have been responsible for creating that policy. In large organisations and bureaucratic systems it may not be possible to identify the person responsible for a particular failure by examining only the actions of individuals at the implementation end of the organisation. For example, within the PSNI, police officers who put a particular policy into effect that resulted in a failure may have had little or no power to influence the formation of that policy. We believe that in establishing responsibility for failures that may have led to the death of Robert Hamill it is primarily those who designed policy who should be made accountable. It may, therefore, be appropriate to give witness undertakings to others, at the implementation end of the system, in order to ensure that the policy-makers are identified and held to account.
Finally, we hope that the Inquiry will take a similar approach to that advocated by us in relation to requests for anonymity and screening from public view.