How the Stormont House legacy legislation tries to define Collusion – by Daniel Holder

 

 

Around a month ago this website published the transcript of a speech by the PSNI Chief Constable George Hamilton at the Queen’s University ‘victimhood and dealing with the Past’ event. He opened by making some significant remarks about collusion, including alluding to its multiple definitions and referring to the concept being a ‘grey area’ that is ‘not defined by law’.

The event took place as the draft Stormont House Agreement bill was being put out to consultation a bill that would set up the SHA legacy institutions including the Historical Investigations Unit (HIU).

Curiously this bill does contain a definition of collusion, and hence for the first time would, should it ever become legislation, put a definition in law. The decision maker as to whether the threshold of collusion may have been reached under this bill, would be the PSNI Chief Constable.

If you have seen the consultation on the HIU and have not noticed a definition, that’s not surprising. It is tucked into paragraph 7(4) of Schedule 3 about 100 pages in and it studiously avoids any mention of the term ‘collusion’. Instead it is within a concept of ‘conduct by a person in respect of a death’. The purpose is not to provide a definition on which the HIU investigations will make findings as to whether there has been collusion (the bill is silent on this) but rather as the basis for decisions as to whether deaths previously reviewed by the PSNI Historical Enquiries Team (HET) can be re-investigated by the HIU.

The reason for this is grounded in the findings of the HM Inspector of Constabulary report which found that the manner in which ‘state involvement’ cases had been reviewed by the HET was so unsatisfactory it had been unlawful. Hence cases in this category require re-examination.

‘State involvement’ cases refer to both direct security force killings and collusion cases – both are defined in the draft bill.

So how does the draft SHA bill define collusion? – in essence it sets out two criteria that must be both met namely that a person:

  1. i) Facilitated an offence or avoidance of justice in relation to the death, and
  2. ii) Did so with the intention of achieving an unlawful or improper purpose;

Cases can then be recommended for reinvestigation if the Chief Constable believes that the person in doing so either may have committed a criminal offence or also if they were an RUC officer (but not other branches of the security forces) committed misconduct, and that either require further investigation. (The Chief Constable would not be making a finding of collusion, rather suspecting potential collusion and hence referring to the HIU who may investigate, otherwise these former HET cases would be outside the HIU’s remit).

The term  ‘facilitating an offence or ‘avoidance of justice’ is elaborated upon as meaning if the person ‘assisted or caused, or intended to assist or cause’, a person to commit a criminal offence or avoid arrest / prosecution in relation to the death. Whilst this first part of the definition can encompass a range of actions or omissions often associated with ‘collusion’ the second part – requiring an ‘intention of achieving an unlawful or improper purpose’ is far more restrictive.

Straight out it prompts the question as to when it is ‘lawful’ and ‘proper’ to facilitate a criminal offence or assist someone evade justice? We are not talking about shoplifting here but criminal offences relating to a death– like murder, supplying firearms and concealing evidence.

This takes us into the world of how informants were handled and what they were allowed to do. Nowadays the legal framework for informant handling states that anything done under a signed-off authorisation from a senior officer is ‘lawful for all purposes’ and hence – regardless of what it was-would not constitute ‘collusion’ under this definition. This legislation – the Regulation of Investigatory Powers Act 2000, (‘RIPA’) was a first and did not exist at the time of any of the HET cases.

Is it really going to be argued that this system just placed existing practices on a formal basis and therefore anything previously authorised by a handler should be considered ‘lawful’?

It is known that the RUC had a system whereby informant participation in a criminal offence was subject to an authorisation by an ACC. Also in the public domain are the RUC Force Orders flowing from the 1980 Walker Report, that established a system whereby Special Branch could veto arrests by detectives, precisely to protect informants from investigation. This system was not even debated in Westminster let alone legislated for. It seems difficult to sustain the idea that authorisation means lawful.

In the alternative was informant participation in any criminal offence pre-RIPA all unlawful? The system was run in a legal lacuna outside of the law, and government declined to set it up on a legal basis. In this case the ‘lawful’ purpose threshold in pre-RIPA cases, should never be met.

This is before we get to ‘improper’ – which raises further questions as to whether it was ‘proper’ to give primacy to the protection of an information source over saving a life known to be at risk. Human rights law says no. But who will make these judgements?

It will not escape notice that the decision makers in this instance will be the PSNI – the agency that retains legal liabilities for the RUC who handled many of the informants in question. The PSNI among other matters is therefore consequently unlikely to declare all informant handling by their predecessor force as ‘unlawful’, given the legal claims that would be expected to arise.

A further element of the definition is the requirement of an ‘intention’. This has been heavily contested. The Chief Constable in his above speech did argue that the term collusion ‘signals malevolent intent’. The definition of collusion provided by Mr Justice Smithwick in his Public Inquiry into IRA-Garda collusion, (a definition both accepted by the PSNI and used by the Police Ombudsman in the Loughinisland report) goes broader than requiring intent. Smithwick stated that whilst collusion generally meant an action “it should also be considered in terms of an omission or failure to act” and included examination as to “whether anybody deliberately ignored a matter or turned a blind eye to it or have pretended ignorance or unawareness of something one ought morally, legally or officially to oppose”.

In finding collusion the Loughinisland report itself goes on to conclude, in relation to protecting informants, both the wilful acts and the ‘passive turning of a blind eye’ it had identified met the Smithwick definition.

Some still see the term ‘collusion’ as a term invented by republicans in the 1980s. This is however misleading – the first use of the term in NI I have seen was by the British Army, in official documents from the 1970s suspecting ‘collusion’ with Loyalists where weapons had ‘gone missing’ from Ulster Defence Regiment barracks.

Whilst it is not a term used in human rights instruments per se it has been used in the judgements of the European Court of Human Rights. So it is not entirely correct to say it is not part of the broader legal framework. It is however not defined in domestic laws and this is the first attempt to do so.  It merits considered discussion.

Daniel Holder is Deputy Director of CAJ and a member, alongside academics from the law schools of Queens and Ulster Universities of the SHA Model Implementation Bill team.

 

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