Police accountability,the Irish peace process and the continuing challenge of secrecy

The 1998 Belfast/Good Friday Agreement (‘the Agreement’) and The Report of the Independent Commission on Policing for Northern Ireland (‘the Patten Commission’) were to usher in a ‘new beginning to policing’ in the post-conflict era. The Royal Ulster Constabulary (RUC), established following the partition of Ireland in 1921, was reformed into the Police Service of Northern Ireland (PSNI). The Patten Commission noted, ‘The anxiety to avoid political direction of the police is strong in Northern Ireland’, recording that respondents had ‘warned against a return to the situation before 1969, when the RUC was in practice subject to direction by the Minister of Home Affairs in the former Unionist government, a state of affairs which many regard as a contributing factor to the outbreak of the Troubles’. The outbreak of the conflict saw the end of this government and the Stormont parliament it had run in an unbroken tenure of office since partition. However, the Patten Commission also noted that ‘several people’ had also ‘commented unfavourably’ about the relationship between the RUC and the secretary of state (the British Cabinet minister overseeing the Northern Ireland Office) during the subsequent period of ‘direct rule’ from London. These people, Patten reported, saw ‘the police as an instrument of British government policy rather than a service meeting local priorities’. The Agreement had promised policing ‘free from partisan political control’ and one that would be ‘accountable, both under the law for its actions and to the community it serves’. The Patten Commission was to lead to a new accountability structure for policing, with a Policing Board inclusive of all the main political parties and independent members at its centre, along with an independent complaints mechanism.

Policing is not a monolith. This discussion will focus on one particular area of policing, which is among the most sensitive in human rights terms: covert policing and the running of agents. Again, our experience of the accountability mechanisms is not a monolithic one, but more an experience of an ongoing pitched battle for control over them, where there can sometimes be successes, and a lot of setbacks, as those resisting change regroup.

When we have challenged the PSNI over the way it uses agents, the response we have received is along the lines of: ‘What is your legitimate complaint? All police forces use agents. Are you suggesting that we should be the only one to discontinue using them?’ It is correct that all police forces use informants and agents. However, it is also correct that there is a human rights framework that sets the parameters of activities that agents and informants can and cannot do in relation to operating within the rule of law, rather than outside it. A number of matters can be determined from that framework. Agents are not supposed to be ‘agent provocateurs’, are not allowed to create incidents that would not otherwise have happened. Equally, there is no provision for impunity for police agents; they should not be allowed to simply get away with committing serious crimes, even less so if they facilitated or directed the commission of those crimes. There are some policy guidance frameworks at a UK level, such as those based on rules produced by the Association of Chief Police Officers (ACPO) about handling agents, practice, and so on. We know, however, that a decision was taken that the RUC’s Special Branch (which was referred to by John Stalker during his investigation of ‘shoot to kill’ allegations as ‘a force within a force’) set these and other rules aside and did not operate within them.

When we reach the time of the Agreement, there was a prerogative for policing reform. The Patten Commission set out a number of provisions for reforming policing and for putting in place some sort of accountability structure. One of the elements was compositional change in the police, that a number of the old guard, including Special Branch (whose size was to be substantially reduced), would be given severance packages, and there would then be, as a temporary special measure, 50:50 recruitment, whereby 50 per cent of new recruits into the police service would have to be Catholic (the indicator used for being a member of the nationalist community), in an effort to change the composition of the police to make it more representative of the two main nationalist/unionist communities (the measures did not apply to other grounds). The second issue was that the old police complaints mechanism, which had not been effective, was replaced by a new one called the Office of the Police Ombudsman for Northern Ireland, which was an independent complaints body. The third structure put in place was an oversight body. While the police service, given the controversies in the past about it being used as a tool of partisan political control, was to maintain operational independence, it was to be put under the strategic direction of, and be accountable to, a Policing Board, which was eventually to include all the main political parties, both nationalist and unionist. Power sharing would therefore effectively be one accountability mechanism to prevent partisan control. (Another mechanism established was the devolution of justice powers to the new power-sharing Northern Ireland Assembly.) Power sharing alone does not human rights-proof policing practice, and there was also a framework envisaged within Patten of accountability and transparency around police procedures and policies, including that on covert policing. It was recommended that, in relation to codes of practice, ‘the presumption should be that everything should be available for public scrutiny unless it is in the public interest – not the police interest – to hold it back’. Patten specifically recommended that, while police operational techniques in covert policing could not be released, the legal and ethical guidelines governing matters such as the handling of informants should be.

That was what was recommended by the Patten Commission. Our first experience (and, indeed, an ongoing experience of what happened after that) is one of great resistance from within sections of the policing establishment, but also from within the Northern Ireland Office. At first, the various drafts of legislation and proposals that came out bore little resemblance to what had been recommended in the Commission’s report. There were a number of things that changed over time. To give one example: as well as an overall Policing Board, there were to be a number of local, council-based, district policing boards envisaged within Patten as, among other matters, having a local oversight role. At the same time as these were being established (having first been renamed ‘partnerships’), the Northern Ireland Office set up, effectively in parallel, groups called Community Safety Partnerships, which were comparatively rather lavishly funded. The role of these partnerships seemed to be not so much one of police accountability as one of quasi-police PR and joint initiatives with the police.

The outcome of this fudge is that, very recently, both of these bodies have been merged into what are now called Policing and Community Safety Partnerships; they are currently being set up and are very much in a transitional phase. I managed to locate a transitional plan of one of them, from one local rural council. It is interesting to contrast the lack of emphasis that is placed on accountability vis-à-vis activities that are more to do with police PR or joint activities, which may be worthy in their own right, but can conflict with the prerogative of accountability. Under this plan, the accountability measures (there are not very many) come under the heading of ‘improved community confidence in policing’. There are four activities listed, mostly fairly modest things like ‘meeting with local community representatives’. The budget for this accountability section is £900 over the year. This contrasts with the budget for activities that are more about working in partnership with the PSNI or measures that are actually a form of public relations. For example, there are plans to go into local schools to deliver anti-hate crime talks. Worthy this may be, but what would be expected from an accountability perspective is more of a mechanism or initiative that assesses and critiques how well or otherwise the police are dealing with hate crimes, rather than one that simply subsidises police activity. That is not in there. What is there, however, is a series of public relations and joint initiatives. The budget for this – remember, this is a small rural council – is £33,000, which may not seem like a great deal of money, but it is certainly a lot more than the £900 that is being spent on what looks more like accountability. So, the finances provide some indication of where the emphasis seems to be going in this new structure, and, in this instance, it is not on accountability initiatives.

In terms of other developments in 2010, power over the justice system was given back to a Belfast-based parliament (now the Northern Ireland Assembly) for the first time in over forty years, after it was removed from the Stormont parliament in the aftermath of Bloody Sunday. However, not all power was transferred from London. Within the Belfast/Good Friday Agreement, there is provision for justice powers to be transferred, but there is an exception for what is termed ‘national security matters’. The term ‘national security’ is not defined, so we find ourselves in a situation whereby, if the British government in Westminster manages to define any particular matter as a national security matter, it can be retained and kept out of the power of the Assembly. One practical example is the retention of DNA. Following S. and Marper v the UK (where the European Court of Human Rights ruled that indefinite retention of an innocent person’s DNA was unlawful), the Assembly is introducing legislation that, while it will not end the retention of the DNA samples of innocent people, will allow, like the Scottish system, a much briefer retention period. However, regardless of this, the Westminster parliament has already legislated to allow the PSNI chief constable, of what is to be a devolved police force, to continue to retain innocent people’s DNA indefinitely if the chief constable thinks it is justifiable on ‘national security’ grounds. This is legislation that the Assembly, even if it wanted to, cannot touch. It sits with Westminster.

The Patten Commission recommended responsibility for policing be transferred to the devolved institutions as soon as possible, save for matters of ‘national security’, which had been kept with London. In 2005, the British government decided to stretch the interpretation of this provision beyond all credibility by announcing that it had decided to formally transfer primacy for the area of covert policing it calls ‘running national security agents’ out of the PSNI and into MI5.This was at a stage when the building blocks for the devolution of justice powers to Belfast were being put in place (although this did not ultimately happen until 2010) and the accountability mechanisms, imperfect though some may argue they are, were at least up and running. At this stage, the British government decided to transfer, in its entirety, one of the most sensitive areas of policing to somewhere effectively out of the reach of the post-Patten accountability framework. This was formalised in the 2006 St Andrew’s Agreement, which was an international agreement between the UK and Ireland. It had an appendix (Annex E) that set out some provisions and safeguards. We are approximately five years on from that transfer, and the evidence we have is that the main safeguards, which were not great, have not actually been put in place. In particular, high-level memorandums of understanding, setting out policy on how MI5 engages with the PSNI and others, were to be published. They have not been.

If you step back and look at the overall picture, British government policy appears to be that of willingness to grant control, oversight and accountability structures over some policing, but the area of policing that human rights advocates should be most concerned about is being kept well out of this. That is effectively what has happened in terms of the transfer. Some ‘safeguards’ were never implemented; with others, it is impossible to tell. For example, the St Andrew’s Agreement did not say that former RUC Special Branch officers (who had taken severance packages to ensure compositional change) could not simply be re-employed in similar roles by MI5. What the St Andrew’s Agreement did say, in a very cryptic way, was that those who were re-employed must have working experience of current PSNI arrangements (i.e. not what happened in the past, but the current processes under which the PSNI operates). However, it is not possible for us to tell which processes MI5 operates under and whether this was indeed a job criterion for new MI5 employees. We have tried unsuccessfully to obtain information to find out whether, as some commentators argue, the old Special Branch has effectively moved en masse down the road and taken positions within MI5. In relation to community balance within MI5, the agency also appears exempt from the requirement to undertake ‘fair employment’ monitoring of the Protestant/Catholic composition of its workforce, a key tenet of our anti-discrimination law.

It is a situation in which we have a number of accountability mechanisms set up, but one of the most risk-laden (in human rights terms) facets of policing, the running of ‘national security intelligence’, sits outside them. The other thing that happened during this particular period was that the first police ombudsman, Nuala O’Loan, did something that the establishment had not necessarily been expecting her to do: her job. She received a complaint from a relative of a victim who had been murdered in north Belfast and conducted an investigation that is known as Operation Ballast. The report uncovered that, within one area of north Belfast, there was a loyalist paramilitary group (‘loyalist’ refers to loyalty to the British crown) in which there were a number of people who were police agents, one of whom was linked to at least ten murders as well as other crimes for which no charges had been levelled, and for which agents had been arrested, subjected to sham interviews and released. There was also evidence of the destruction or ‘losing’ of forensic evidence and falsifying or not keeping records. She effectively uncovered considerable police-paramilitary collusion, including impunity being afforded to police agents. It was a big scandal; this was one of the few times that a light had been shone on this particular area of policing. It is well worth reading the Operation Ballast report. It is also worth noting that while she had examined specific incidents, she concluded that there was no reason for thinking that they were ‘isolated’ practices, but, on the contrary, were ‘highly likely’ to be ‘systemic’. In the light of the then upcoming transfer of primacy to MI5, a number of recommendations were made as to how to afford greater accountability in the area of covert policing.

Since Ballast, there appears to have been quite a backlash against independent mechanisms. We cannot trace it all back to this, but, certainly, accountability mechanisms that were set up, and reforms that were taken forward, were subject to further regression from that point on. Such an establishment backlash would also not be an ‘isolated’ incident. In 2001, the police ombudsman had also produced a report that was critical of covert policing. It related to the Omagh bomb and the issues of alleged failures to share intelligence from police agents that could have assisted the bomb investigation or even prevented the attack. The reaction at that time from the policing and political establishment to the report was telling. The then chief constable threatened to publicly commit suicide if the report were proved true. The policing spokesperson for the main unionist party at that time, Ken Maginnes, likened the police ombudsman to a suicide bomber and claimed she had ‘outlived her usefulness’. This was the reaction the ombudsman got at the time for having broken the taboo of an official institution criticising the police and the world of covert policing.

One example of a potential post-Ballast backlash is what happened to the operation itself in terms of follow-up. It was succeeded by another operation, called Operation Stafford, in which the Historical Enquiries Team (HET), a police unit set up to look at unresolved killings during the conflict, began to take on part of the follow-up investigation into the criminality uncovered in the ombudsman’s report. However, this investigation was subsequently removed from the HET. We do not know why, although some commentators suspect it was because the HET team had begun to close in on the Special Branch handlers who had been exposed in the Ballast report. Once the investigation was taken off the HET, it was handed over to that section of the PSNI where the successor to Special Branch now sits, despite the conflict of interest. The official reason given was that the HET did not have the time, resources or expertise to conduct the investigation – a very strange reason to be given, as the HET is officially deemed fit for purpose regarding the rest of its work.

A second example of regression is what subsequently happened to the ombudsman’s office itself. This is something on which we have done a lot of work. We issued a report in 2011, following a number of concerns that the ombudsman’s office had significantly changed under the second ombudsman, Al Hutchinson. What had changed, in particular, was the apparent day-to-day reluctance, at best, to conduct proper investigations into conflict-related incidents. We also uncovered irregularities in the appointment of Al Hutchinson, a public appointment undertaken by the Northern Ireland Office. We recently took a challenge to a Freedom of Information tribunal to obtain correspondence between the Northern Ireland Office and the ombudsman’s office about the appointment, which they would not give us. They eventually settled just before the court hearing, disclosing the requested documents. The whole experience provided further evidence of significant irregularities in the appointment process, which took place through a recruitment agency and involved the introduction, after the post had been advertised, of an additional criterion of ‘previous Northern Ireland experience’, which seems to have had the impact of disadvantaging a number of other well-qualified candidates. The suspicion has to be that there were political considerations behind the appointment, with a view to appointing someone who was, by his own admission, not very keen on investigating the past.

We issued a very critical report in the summer of 2011 entitled Human Rights and Dealing with Historic Cases: a review of the Office of the Police Ombudsman for Northern Ireland, which catalogued serious concerns around the ombudsman’s commitment and ability to conduct robust and impartial investigations into the past and which raised concerns about political and police interference in the office. Around that time, the chief executive of the organisation resigned for similar reasons, stating that the way in which controversial cases, like those involving police agents, had been handled was one reason for his resignation, as well as a significant lowering of the professional independence between the operations of the ombudsman’s office and those of the PSNI. This was followed by two formal investigations, one of which was conducted by the criminal justice inspector and echoed the concerns in our own report. The inspector’s findings included: observing changes were made to drafts of historic investigation reports in order to remove criticism of the RUC; finding that senior officials in the office had requested to be disassociated from reports into historic incidents after original findings were significantly altered without reason; and that there had been a lowering of independence of the office. The outcome of this was that the ombudsman resigned and an appointment process has since taken place. CAJ has battled long for an independent police complaints mechanism. The police ombudsman’s office was set up to undertake that role; it clearly met resistance and attempts to ‘neutralise’ it as an institution. Hopefully, this has now been exposed and this office will return to being fit for purpose.

A final example of attempted ‘rollback’ is the current ‘rehiring scandal’ within the PSNI. It has transpired that, over the last number of years, in the context of the compositional change brought about by Patten, whereby a number of officers (Special Branch included) were given quite generous severance packages to move on, officers have actually been rehired, via a recruitment agency, as civilian staff to conduct what look like very influential policing roles. This is problematic on three levels: first, it contradicts the Patten settlement in terms of compositional change; second, it places these officers, by their very status (civilians), outside the reach of the police ombudsman’s office because they are not actually police officers; and, third (and perhaps the most important issue in the context of the debate around accountability), what appears to have happened is that a lot of rehired staff may be involved in PSNI work on ‘historical’ (conflict-related) cases. This is despite them, or at least their former units and their colleagues, being potentially the subjects of such historical investigations, as a lot of these enquiries touch on the activities of police agents. Potentially, therefore, the very people who were running the police agents may now be reinserted into the structure for conducting historical enquiries. Thus, the people filtering the intelligence data that come from the PSNI, either to the HET, the police ombudsman’s office or, indeed, anywhere else, may have a role in investigations in which they themselves or their former comrades may be implicated. CAJ had been raising this as a conflict of interest under Article 2 of the European Convention on Human Rights, which provides for independent and impartial investigation. We have tried in earnest to obtain information in relation to this practice, including through Freedom of Information requests, as have many others, including journalists. The BBC recently managed to expose some of this in a prolific way, as a result of data it had received. However, we have not managed to get figures on issues such as how many Special Branch officers are in these particular units, controlling legacy information. CAJ has been simultaneously assured in meetings with the PSNI that there are not very many of them, but, at the same time, we are told, when we put in Freedom of Information requests, that it would be too expensive to count them all.

So, there are issues of both rollback of the reforms and some accountability mechanisms, but also the real concern that, with the transfer to MI5, the most sensitive area of policing has been moved so that it is actually beyond PSNI’s reach. This at least indicates that there is a degree of fear about these mechanisms working. On top of this, we now have the spectre of the ‘National Crime Agency’, the planned successor to the Serious and Organised Crime Agency, which has been dubbed the ‘British FBI’. This appears to be another police force, separate from the PSNI, which will be inserted into the north of Ireland, but will be answerable to the home secretary in London and not the Policing Board in Belfast. As well as exercising police powers, its remit will also extend to the sensitive covert areas of intelligence gathering. If this happens, it will constitute a further setback to efforts to ensure accountability.

All these issues relating to accountability for covert police are relevant to the present debates on ‘secret justice’, reignited by the Justice and Security Bill presently progressing through Westminster, which would legislate to allow ‘closed material procedures’ (CMPs) in a range of civil court proceedings. The whole secret justice issue is about evidence that is based on intelligence data from police agents being presented behind closed doors in court. There are a number of very serious particular impacts that the Justice and Security Bill may have on our post-conflict situation. While the UK government has now decided that inquests will be excluded (for now) from the scope of the new CMPs, there are still a range of civil proceedings relating to dealing with the legacy of the conflict here, which would be affected by the introduction of CMPs. This would include future judicial reviews of investigations into conflict-related deaths (e.g. challenges to the PSNI, the HET, the police ombudsman and challenges relating to inquests, decisions not to prosecute, etc.); along with civil claims for damages for things that have been talked about in the press such as internment, miscarriages of justice, and so on. It is very likely that these are some of the very circumstances in which the government will seek to use CMPs in court, which could effectively shut these avenues down. For many people, the judicial route is the only avenue they feel is left, so power to hold such proceedings behind closed doors will have massive implications.

What compounds our fears about the introduction of CMPs is our existing experience of mechanisms that allow decisions to hinge on often unchallengeable police intelligence data. Provision for secret evidence in the Special Immigration Appeals Commission (SIAC) is perhaps better known than its similar introduction into challenges to employment discrimination claims. Provisions empowering the minister to issue a ‘national security’ certificate, effectively preventing individuals from taking up employment, have been around for some time, and there was no mechanism to challenge them. There was a well-known case that went to Europe called Tinnelly & others v UK. In this instance, a power station had planned to subcontract some work to a company, but the offer had been effectively blocked by the minister, deciding to issue a national security certificate saying that it would be a ‘security’ risk for the company to be given this particular job. This followed reported objections from loyalists around the factory that they would not allow nationalists to work there. Tinnelly complained that the decision had been brought about due to sectarian pressure and took up a legal challenge. Although there is no right to work in the European Convention of Human Rights, the company successfully took a case under Article 6, the right to a fair trial, challenging the fact that there was no mechanism whereby it could appeal the minister’s decision to issue these certificates. Nowadays, under the Northern Ireland Act 1998 (the Belfast/Good Friday Agreement implementation legislation), such cases can be heard, but only by a ‘special tribunal’, whereby the cases are held in a CMP with a special advocate. Effectively, this is another court that can hear secret evidence. We have been trying to find out (again, through Freedom of Information requests) how often this special tribunal has sat and how many certificates have been issued by the minister to block people from taking up employment. The answer we get back is that the Northern Ireland Office, where the minister sits, does not ‘record’ such information. This is interesting in itself in that, when someone appears to be deemed a threat to national security, the minister apparently does not need to make a note of it. So, either presumably the minister is doing this on behalf of another agency, and it is being recorded elsewhere, or certificates are not being issued. We do not know.

Another prominent example on which we have carried out some work of late is the revocation of licences of people who have been released from prison. Decisions have been taken by a body known as the Parole or Life Sentence Review Commissioners, in conjunction with the Northern Ireland Office minister, to return to prison people who were released under the Agreement. Again, this is a process that can rely on ‘secret evidence’ in the form of intelligence data that you cannot properly challenge. There are a number of very high-profile cases that have happened over the past few years. At the moment, the one that is best known is the case of Marian McGlinchey (née Price), who was convicted of bombing the Old Bailey in 1973, issued with a royal pardon and released in 1980, but returned to prison in 2011 on the basis of a decision by the Northern Ireland Office minister. Therefore, we have a situation in which we have existing problems with secret evidence being used together with this provision which gives the minister a power that can be used effectively to imprison people who are ex-prisoners, not for proven illegal activity, but, in the worst case scenario, for political dissent. This power can be exercised because no criminal charges have to be proved or even laid against them at the time, and intelligence data can be presented as evidence.

The issues of police accountability for covert operations do, therefore, tie directly into the current debates around ‘secret evidence’. The battle for accountability continues.