Northern Ireland Policing Board Historical Enquiries Team (HET) Working Group

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

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.

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 inception. We continue to assist clients in this way through attendance at meetings with the PSNI HET and through making representations in the process of 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. We have explained to our clients and to their instructed solicitors our views on the future of the PSNI HET. Together with other NGOs we have attended meetings with the PSNI HET on policy aspects of its work including the matter of interviews under caution and the conduct of military cases (those cases identified where 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 they published their Report.

Submission to the Working Group on the HET of the Northern Ireland Policing Board We note the statutory basis of the Northern Ireland Policing Board (the Board) under Part 2 sections 2 – 13 and by Schedule 2 of the Police (Northern Ireland) Act 2000, specifically section 3(3) in relation to holding the Chief Constable to account in the exercise of his functions and those of the police. It is therefore appropriate that the Working Group on the HET of the Board is tasked with the work of considering the 20 recommendations made Her Majesty’s Inspectorate of Constabulary (HMIC) in its Inspection Report of the Police Service of Northern Ireland (PSNI) Historical Enquiries Team (HET). We also note the recent comments of the Northern Ireland Audit Office regarding the failings of the Board in adequately holding the PSNI Chief Constable to account in its Review of Continuous Improvement arrangements in Policing, published on 3 September 2013. We expect the Board to address this criticism with specific regard to the role of the PSNI Chief Constable in relation to any future of the PSNI HET and that it is the Board and not the PSNI Chief Constable which will ultimately decide any future of the PSNI HET. This is if it is determined that the PSNI HET should have future and after extensive consultation and consideration, as we suggest below. Further, we note the position of the Board in its statement of 4 July 2013 that it had no confidence in the senior management of the PSNI HET. We assume that this position of the Board regarding the senior management of the PSNI HET has been maintained and will inform the work of the Working Group on the HET and be reflected in its recommendations to both the Northern Ireland Assembly and to the PSNI Chief Constable. We suggest the suspension of the senior management of the PSNI HET including those senior managers/investigators seconded or contracted to the PSNI HET. In his statement in response to the statement made by the Board on the receipt of the HMIC Inspection Report on 4 July 2013, the PSNI Chief Constable requested the HMIC to be involved in the implementation of its 20 recommendations. We support this approach in maintaining the involvement of the HMIC and request that the Board also supports this view and describes how this involvement will take place and over what projected time period and through what mechanism given the constrained budget and competing demands made upon the HMIC by Home Office. If the PSNI HET is to be retained, despite what RW(UK) considers to be irreparable damage to its reputation and the structural problems of repairing its mechanisms, this damage through political dialogue and community engagement, then the HMIC must be one of the mechanisms regularly deployed to inspect its operations and its results. Further, we expect that the Working Group on the HET of the Board will implement all the 20 recommendations made in the HMIC Inspection Report, subject to our analysis below. The HMIC made 20 recommendations which Rights Watch (UK) broadly endorse (but in some cases which require explanation or expansion or amplification) in addition to points raised in this submission. We welcome the view of the Board taken in its 4 July 2013 statement that all PSNI HET reviews in military cases would be suspended from that date but request clarification from the Board and the PSNI that this has been in fact the case, given the recent statement by the Chief Constable on his interpretation of this imperative. We would further recommend suspension in all cases of where there is alleged state collusion by agencies other than the military including RUC Special Branch and the Security Services (MI5) (we would include military intelligence including the Force Research Unit (FRU) in this category). Whilst we welcome the intervention of a statutory body in both recommending an inspection by an external state agency of the PSNI HET and in implementing all the 20 recommendations of the HMIC Inspection report of the PSNI HET subject to our analysis and suggestions below, we would suggest that the Working Group on the HET of the Board seizes this opportunity to consult with other statutory and non-statutory bodies and agencies and we welcome the invitation as a human rights NGO to contribute to this process. However, we suggest that the Working Group on the HET of the Board also consults with the following agencies: The Public Prosecution Service for Northern Ireland, the Northern Ireland Criminal Justice Inspectorate, and the Coroners Service for Northern Ireland, the Attorney-General for Northern Ireland, the Office of the Police Ombudsman for Northern Ireland, the Northern Ireland Office and the Northern Ireland Human Rights Commission. This is based on points in our submission in relation to any reform of the PSNI HET and the positioning of the PSNI HET within the future development of what Rights Watch (UK) calls the best practice mechanism matrix of truth recovery and accountability resources in the transitional justice arrangements available to resolve the conflict related deaths and injuries which occurred between 1969 and 1998 in Northern Ireland. It is against this background of historical human rights violations and the best practice mechanism matrix which we urge the Working Group on the HET of the Board to approach in its task in implementing a possible reform of the PSNI HET. This should start with the HMIC Inspection Report 20 recommendations, or the decision to close or suspend the PSNI HET, based (initially) on the 20 recommendations in the HMIC Inspection Report of the PSNI HET. If an assessment that the implementation of 20 recommendations and their variants will not serve to satisfy either the compliance demands of the procedural discharge obligations to investigate arising under Article 2 of the European Convention on Human Rights (the Convention), which protects the rights to life, even in compromised form, or because the credibility of the PSNI HET has been fatally undermined and no longer commands the public confidence of the wider community in Northern Ireland then the PSNI HET should be finished with. This would be based on the conclusion that its fitness for purpose is irretrievable and its operational decision taking possibly illegal in terms of compliance with domestic and European legal standards. It would also be the conclusion that the PSNI HET has not operated in accordance with the undertakings given by the representatives of the UK (including the former PSNI Chief Constable) to the Secretariat of the Council of Ministers. We are aware of the following:

• That the PSNI HET review mechanism process (we discuss the crucial distinction between review and investigation further below) of historical (legacy) cases was accepted by the Secretariat of the Council of Ministers as not able to be compliant with the procedural discharge obligation required by Article 2 of the Convention when there has been a violation by the state of the right to protect life. This is because the PSNI HET in its role to review the conflict related deaths in Northern Ireland was designed as part of an established state police service and was therefore never going to be sufficiently independent in terms of how the relevant Strasbourg jurisprudence has been developed and interpreted.
• However, we note the comment of the HMIC at page 22 of its Report:

“Although the CM did not envisage that the HET would satisfy the Article 2 investigative requirement by itself, we have considered, in light of our findings as set out previously, and in accordance with our terms of reference, the respects in which the HET’s process does and does not meet the four requirements of an Article 2 compliant investigation. This may be relevant to the question whether, and to what extent, the HET is capable of playing a role in the satisfaction of Article 2, when taken together with other measures. It may also be relevant to any future consideration by the CM whether to reopen its examination of the HET as part of its review of the UK’s compliance with the ECtHR’s judgments in the McKerr cases.”

• We also note the comment that that the PSNI HET could have delivered a measure of resolution and have played an important role in satisfying the state’s obligation to conduct Article 2 compliant investigations, when taken together with other measures proposed to the Secretariat of the the Council of Ministers. The package of measures presented to the Council of Ministers by the UK government following the McKerr group cases decided through the judgments of the ECtHR must now also be considered by the Working Group on the HET of the Board. This is because any future of the PSNI HET must be viewed within the context of the best practice mechanism matrix of truth recovery and accountability in the Northern Ireland historical (legacy) cases. The role for a review, investigatory or prosecutory agency or commission which might include as a best practice mechanism a reformed variant of the PSNI HET must be seen within the wider perspective of both the debate around Dealing with the Past in Northern Ireland and the issue of avoidance of impunity of and by UK government in dealing with violations of Article 2 of the Convention in the Northern Ireland historical (legacy) cases as a result of the conflict. This context must be within the implied terms of reference of the Working Group on the HET of the Board if the confidence of the victims and of the wider community in Northern Ireland is to be restored in relation to any PSNI HET variant. Similar concerns apply to OPONI, the backlogged coronial system and the apparent lack of political will to pursue statutory inquiries into conflict related deaths in Northern Ireland, including the case of Patrick Finucane (contra Weston Park and the Cory recommendation), Ballymurphy 1971 and Omagh 1998 (which was importantly placed outside of the remit of PSNI HET as distinct from the legacy cases).

The PSNI HET was introduced as one of the package of measures presented by the UK government to the Secretariat of the Council of Ministers as a result of the McKerr ECtHR judgments. In requesting that the Working Group on the HET of the Board engage in dialogue with the other bodies and agencies listed above, we are proposing that it is at this juncture, when the requirement for promptness in investigation of state violations cannot be discharged in the Article 2 procedural obligation, that the Working Group on the HET of the Board revisit the package of measures and the current best practice mechanisms matrix available in Northern Ireland for conducting investigations leading to resolution including prosecution, into the conflict related deaths. This would be with the specific intent of identifying the locus within these mechanisms which would deliver a prosecutorial possibility in the event of the collation of evidentiary material of satisfactory standard to make a decision to proceed to due process through prosecution a real possibility taking account of political will and the complexity of amnesty and suite immunity. If this is not possible because of the inadequacy of evidential opportunities, then both the presentation of the evidence and reasoning concerning the evidence decision must be presented in a way which is both transparent and accountable to the public scrutiny. This means that oversight mechanisms are as rigorously independent within the investigation collation and decision making process as possible through open checks and balances guaranteed by civil society in its broadest form of constitution and representation. We are minded to propose this as a standard of engagement by the Working Group on the HET of the Board which would both serve to partially allay the inherent defects of state sponsored mechanisms of investigation of conflict related deaths in Northern Ireland and satisfy the demand of the wider community in this central element in the transitional justice process affirmed in the Belfast/Good Friday Agreement and reflected in the work of the Consutative Group on the Past (CPG). We do not deny the political and jurisprudential hazards and difficulties in this proposed standard of evidential collation and evaluation leading to possible criminal prosecution (or in the alternative a community lead amnesty or immunity from suite) or the presentation of evidence short of being subject to the due process of law. But it is a way of approaching this issue in the wake of the criticism of the PSNI HET by another state agency (HMIC) and given that Dealing with Past in Northern Ireland in terms of the historical (legacy) cases has been recently described by a senior law officer as ‘drifting along in a vacuum of uncertainty’ (see: http://www.irishnews.com/news/dpp-issues-over-historic-cases-must-be-addressed-warning-society-drift-1257919). We are also aware of the practical problems of evidence gathering in this approach: the impaired memory, the deceased witness or dead perpetrator and limitations in using modern evidence-gathering in historical (legacy) of human rights violations cases and the potential immunity from suite to obtain evidential material in the resolution process. However, this is why this analysis needs to be undertaken together with the other agencies and bodies listed above. We remind the Working Group on the HET of the Board that the McKerr group of cases of the ECtHR which gave rise to the basic requirements for Convention compliant investigations following an Article 2 violation drew upon the general duty imposed upon States by Article 1 of the Convention, namely to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention,’, the inference that there should be an effective investigation when an individual has been killed as a result of force (Jordan v UK (2203) 37 EHRR 2, paragraph 105, citing McCann v UK (1995) 21 EHHR 97, paragraph 161). (The word investigation is that used in the Strasbourg jurisprudence and not review as the HET slipped toward in its operational practice. Review is not a word used with the jurisprudence of the procedural discharge obligation arising from a breach of Article 2 of the Convention and implies a lesser standard of thoroughness than that of investigation and this point is made explicitly in the HMIC Inspection Report of the PSNI HET at pages 55 -57. Here the conclusion was made that a review by the HET could not deliver the satisfactory measure of resolution for families of the victims because the police review process is not systematic and that a formal inquiry is required to discover and examine the facts in order to establish the truth which would then form the basis of an independent prosecutorial decision of sufficient probative value and evidential wait within the criteria of prosecutorial success required by a police investigation). Professor Brice Dickson usefully presents the elements of the McKerr Article 2 procedural discharge requirements in his text book “The European Convention on Human Rights in Northern Ireland” ((2010: Oxford: Oxford Unity Press, pp. 269 – 270):

1. The practical independence of the investigators which means more than just the hierarchical or institutional connection
2. The effective investigation meaning a decision on justification for force and taking the reasonable steps to secure the evidence
3. The prompt investigation, delay implying collusion or tolerance of the violation
4. Public scrutiny of the investigation which includes next-of-kin participation.

Professor Dickson notes the importance of the submissions drafted by Professor Fionnuala Ní Aoláin on behalf of the Northern Ireland Human Rights Commission (NIHRC), of which Professor Dickson was first Chief Commissioner at the time, that were made to the ECtHR, when the NIHRC was a third party intervener in the McKerr group of cases. Professor Dickson reminds us that the NIHRC submission argued that it was not sufficient for a State to declare that, while certain mechanisms were inadequate, a number of such mechanisms regarded cumulatively could provide the necessary protection. In the event, 10 years later, the constructive observations made by the HMIC in its Inspection Report of the PSNI HET together with the recent problems with OPONI, the backlog of historical inquests within the Northern Ireland coronial system and the political declaration not establish any further statutory inquiries into conflict related deaths in Northern Ireland points to the cumulative failure of the UK government, despite its posturing before the Secretariat of the Council of Minister, to robustly prosecute progress on 3260 conflict related deaths to satisfy the just measure of resolution demanded by the families of the victims and of the wider community of Northern Ireland with the necessary degree of confidence including the application of the due process of the law. Regarding the 20 recommendations of the HMIC made in its Inspection of the PSNI HET even if the political decision is taken to cease its operations we consider these to be important as they provide a potential initial map of best practice engagement in the resolution/prosecution of the Northern Ireland conflict related deaths. They may, we suggest be considered alongside the proposals in the Report of the Consultative Group on the Past (HC 171) in its 2009 report to the UK government. Comments on the HMIC 20 recommendations: 1: Accepted 2: Accepted 3: Accepted – but this needs development in terms of exactly how openness and accountability can be achieved in terms of the necessary degree of public scrutiny and victim participation demanded by the Strasbourg jurisprudence. 4: Accepted 5: Accepted – this should be clarified within the broader considerations of whether the process is one of review or investigation which would determine a prosecutorial element or immunity from suite 6: Accepted 7: Accepted – this should be expanded so as to be able to record all decisions taken with other agencies including the law officers and OPONI 8: Accepted – this should be expanded to include recruitment policy, vetting and declaration of interest; see further below 9: This recommendation needs to be considered in relation to the overall future of the PSNI HET, its budgetary commitment and the cost of re-review/investigation where the original review is now considered to have been compromised by the ‘pragmatic approach’, impartiality or similar stain 10: Accepted – please see our comment below on this. 11: Accepted – please see our comment below on this. 12: Accepted 13: Accepted - this should also track engagement with and recommendations made by other interested parties including NGOs and legal representatives (although we note the importance of cases where there is no NGO or lawyer involvement) 14: Accepted – given that this recommendation is couched in terms of immediacy can this verified? 15 – 17: We do not accept these recommendations in their present form. “Recommendation 15. The Chief Constable should enforce his decision that any case which requires investigation should be referred to the PSNI C2. The Chief Constable should also introduce systems to provide himself with an assurance that this policy is applied in all cases. Recommendation 16. The HET should dispense with what it has termed as the ‘pragmatic approach’ and stop conducting interviews under caution. Recommendation 17. The HET and PSNI should review the MoU between them to clarify the point at which cases should be referred to PSNI C2 for investigation and to address any anomalies and inconsistency between the handling of state and non-state cases.” 18: Accepted – this should be within the remit of the 2000 Act regarding the role of the Board and also within the remit of an independent oversight panel for it would be to these authorities that the Chief Constable would be accountable in terms of his satisfaction of consistency of operation. 19: Accepted 20: Accepted – this recommendation requires detailed consideration in terms of recruitment policy, vetting, declaration of interest and security clearance. We concur here with the Committee on the Administration of Justice (CAJ) that the relation between Recommendations 11 and 20 is crucial in that 11 requires an independent audit process of intelligence in all cases and 20 as we examine below in terms of governance and human rights compliance within a civil society framework It is our position that a key element in investigating state violations in Article 2 cases in order to discharge the procedural obligation in Northern Ireland is independence. It is this independence which delivers credibility and victim support. However, we acknowledge that to achieve efficient investigations there needs to be a level of police engagement due to the simple fact that it is the police who have the expertise (although not exclusively) required to conduct such investigations together with the role of the prosecution service. Therefore the following aspects need to be considered:

• The recruitment of investigators including vetting, security clearance, investigation of background and declaration of interest
• The induction, on-going training, supervision and appraisal of investigators
• The management of investigators and the operation of investigators within clearly defined operational guidelines
• The key role in the management of intelligence held by the agencies of the state and how this is utilised in the process of investigation and how decision taken about intelligence can be explained within a process of accountability without compromising the sensitivity of the intelligence. There would be a role for an Independent Reviewer of Intelligence reporting to an independent authority. There would also be a role for the prosecutor in this intelligence matrix, and, when appropriate OPONI.
• An independent oversight panel would contribute to satisfying the independence requirement if this panel a) had a statutory basis (although not necessaruily depending on its relation to the Board and the Northern Ireland Assembly), b) was properly constituted of political representatives, experts and delegated members of civil society, c) was serviced by the an Independent Reviewer of Intelligence, d) was human rights compliant, e) was placed between the Chief Constable and the reformed HET in the hierarchical structure of command, and f) whose principal rationale was to ensure the standard of governance demanded by an Article 2 model of investigation.

The implementation of structures and policies along these lines would by default dispense with the requirement to transfer cases back into the structure of ‘normal’ policing (what is in effect the transfer in PSNI C2). The reformed PSNI HET would contain within it a dedicated unit mirroring the work of PSNI C2 in the historical (legacy) cases, the work of this unit involving a prosecutorial input by the relevant law officer or OPONI and its accountability achieved through scrutiny by the Independent Reviewer of Intelligence and the independent oversight panel. The Chief Constable would maintain direct command but within this additional oversight accountability mechanism complimenting the role of the Northern Ireland Policing Board. We envisage that the oversight mechanism would be complimentary to the Board. The task of the Working Group on the HET of the Board in deciding whether to cease the operation of the PSNI HET or to adopt the recommendations of the HMIC in whole or in part, in accepted form or revised and expanded upon, so that a form of PSNI HET can be an element in the best practice mechanism matrix, is now a work in progress in the process of Dealing with the Past in Northern Ireland which demands truth, justice, accountability which underpins the peace and determines the working out of the present and the future. 09 09 13