The Chief Constable and the Police Ombudsman in drive to tackle ‘Legacy of the Past’

(Below are the transcripts in full of Chief Constable George Hamilton and Police Ombudsman Dr Michael Maguire addressing a gathering at Queen’s university this morning):

 

Lessons from the past and building for the future - by Chief Constable George Hamilton

 

 

I was very glad to accept the invitation to come here to this morning’s event on “victimhood and dealing with the Past”. The extent to which the legacy of the past has implications for both the present and the future cannot be underestimated. If we are to build a better future, we must be prepared to learn from the lessons of the past.

I have consciously tried, since becoming Chief Constable, to take up every opportunity to speak about dealing with the past. I believe there is a need for transparency and public debate on this important issue. However, on some occasions, the hunt for media headlines and the necessary editing to fit programme time slots can mean that this complex issue is dealt with insensitively or indeed inaccurately.

I know there have been times when I have been frustrated by headlines resulting from comments I have made as Chief Constable which have been reported without context and will have therefore unnecessarily caused hurt.

 

The Term Collusion

In particular, this has been the case when l am answering questions about the much debated term of “collusion”.

Collusion is a term I have been asked about on any number of occasions as Chief Constable. For some people, anything other than an outright acceptance of the assertion of collusion is immediately viewed, not only as defensive but clear evidence that I am either naive or continuing to act as part of a state cover-up for the wrongs of the past.

Of course, none of the above are accurate. I will not defend bad policing just because I am Chief Constable; nor am I naive; and I am certainly not a servant of the state – I am a servant of this community.

Every section of our society suffered pain and loss during the troubles. The past is the present for those who suffered as a result of our dark and grievous history. It seems that for some people, a finding of collusion in the death of their loved one is an important part of gaining closure. For other people a finding of collusion simply conpounds their grief by failing to fully articulate a broader account of what happened in the past.

The term collusion is a grey area. It is not defined in law. There have been a number of interpretations of the term by many intelligent people who have examined the past in Northern Ireland. It is not my role to put forward another definition, nor indeed should it be the role of the Chief Constable to agree or disagree with any of the definitions put forward by others. So why am I raising it?

I am raising it because this term – which has no agreed definition – is damaging policing; not just policing in the past but policing in the present day. And if we are not careful, it will damage policing in the future.

 

A few bad apples or collusion?

None of what I say is about defending the indefensible.

Over recent years there have been numerous Ombudsman Reports; Public Inquiries; Judge-led Reviews; as well as the ongoing legacy Inquests – all of which tell us that policing in the past was not always as it should have been.

The problem was much bigger and more complex than the “few bad apples” analogy that has been articulated previously. In the absence of any regulatory framework for managing “agents” police officers were left to set their own standards, they were unaccountable to the law because there was no law. They were unaccountable to their fellow citizens. Policing was being done in a vacuum that allowed unregulated practice. Honest individuals were placed in impossible situations, having to choose between bad and worse. Many people lived; but some people also died as a result of that practice.

So…. “Playing God”; “the end justifies the means”; “collusion”?

Whatever term is used to describe it, it was not right and it was not what policing was supposed to be about.

While there is no criminal charge of collusion; if there is evidence the law is broken, there are a range of charges that can be brought – Conspiracy to Commit Murder; Withholding Information; Assisting Offenders; Misfeasance in Public Office and many more.

There should be no hiding place for anyone who broke the law or acted with criminal intent – be they police officer or paramilitary.

A significant difference between investigating police actions in the past and investigating paramilitaries in the past – is that the police kept records. They were different times and the record keeping was not to the standards that it is today, but I have ensured that the Ombudsman has unfettered access to the millions of pieces of information the Police Service holds.

With each Ombudsman Report that publishes, parts of the story of policing are laid bare. It is right that policing is held accountable and that lessons are learned – but the investigations do not tell the full story of policing in the past. A story of bravery and of loss.

 

Intent

Although there is no agreed definition, the term collusion signals malevolent intent. Intent is an issue that is rarely discussed in all the public debate on collusion. Over the years, through all the Public Inquiries; Ombudsman Reports; and different reviews of policing during the troubles, the number of police officers who were shown to have had a sinister intent were a very small number and a small number of police officers have been prosecuted for criminal acts.

In my experience, the majority of people who choose to become police officers do so because they are motivated to do good – in simple terms to protect life and serve their community. The same was true of the majority of police officers who joined the RUC. They served with great integrity and they sought to protect life and to protect the community.

The environment in which they worked was chaotic - terrorist attacks were happening on a daily basis, and many lives were being lost. Investigations struggled to keep pace with the rate of murder and serious injury. The pressure was extreme. In these extraordinarily difficult and dangerous circumstances, the intent with which the vast majority of decisions were made was for the protection of the community. But they were, on many occasions, decisions and judgements that should not have been taken; and, I believe, would not have been taken if there had been a proper regulatory framework in place.

The RUC recognised the almost impossible situation they were in and the Da Silva Review makes reference to the fact that the RUC had asked Government for a framework, guidance or legislation on many occasions. Nothing was forthcoming.

 

Change in Policing

The support and guidance that policing required did not come until close to the Millennium – the same time as the peace process was starting to take hold. At that time a series of events happened that were to change policing for the better. It began in 1998 with the passing of the Human Rights Act. The embodiment of the HRA by policing has meant that the gathering and use of intelligence must be for the protection and vindication of the human rights of all.

Covert policing was recognised as a valid and important method by which to protect people and prevent harm but it needed a statutory footing. The difficulties and challenges of this area of policing meant it took two years to write the Regulation and Investigatory Powers Act, which was enacted in 2000, alongside the Human Rights Act.

At the same time a new and more comprehensive accountability framework for policing was created through the Northern Ireland Policing Board and the Office of the Police Ombudsman.

It was an Ombudsman’s Report into the first Omagh murder investigation that prompted the Blakey and Crompton Reports, which together with the Stevens Report provided a series of recommendations for the professionalization and modernisation across three important areas of policing – the investigation of serious crime; the use of covert policing; and the sharing of information between intelligence and investigative functions. While the Reports made difficult and uncomfortable reading, police officers wanted change and the Reports were all accepted in full.

I was part of the Team that was responsible for delivering the major changes that took place in response to the Report Recommendations and the new legislative framework. It was a colossal change project that took place amid wider organisational change as the newly formed Police Service of Northern Ireland undertook the 175 Recommendations of the Patten Report which signalled a New Beginning to Policing.

 

Building for the Future?

Policing has learned lessons from the past.

Today, PSNI is recognised as one of the most accountable and professional police services globally. Crime is at an all-time low and independent surveys tell us that confidence in policing is at an all-time high.

So, what’s the problem?

The problem is that twenty years on from the Agreement that brought peace to this part of the world, we still have no agreed, holistic structure for dealing with the past. The absence of a holistic approach has left a landscape of legal processes to address the pain caused by our troubled history. And amid this confused landscape, there is a constant sapping of public confidence in present day policing.

In particular, the constant adversarial debate on the ill-defined term of collusion maligns an entire organisation with malevolent intent and fails to tell the broader story of policing in the past. Nor indeed does the debate highlight the professionalism and good practice of policing today. This has an impact on policing in the present day. It is not unusual for our Neighbourhood Officers to have accusations of collusion thrown at them and a cooling in relations that are so tentatively built in both republican and loyalist communities.

The Patten Report signalled “A New Beginning for Policing”. But there was no mention in Patten of dealing with the past and my growing concern is that in the continued absence of a more comprehensive way to deal with the past, the New Beginning to Policing is at best being hampered; at worst being put at risk of failure.

The debate last week dangerously over-simplified the complexities of dealing with the past in Northern Ireland. The figures for PSNI’s Legacy Investigations Branch are in the public domain and clearly show that members of the armed forces are not the only people being investigated for their actions in the past. However, Legacy Investigations Brach is only one part of a confusing landscape of processes to deal with the past in Northern Ireland, which includes among others the coronial inquests, public inquiries, Police Ombudsman investigations, the Criminal Cases Review Commission, civil litigation and Freedom of Information.

The current piecemeal approach to the past is not working. The Police Service and the other criminal justice bodies of the present are neither resourced or set-up to adequately address the past.

And it does not feel that the story of our past is being told in a way that is fulsome or fair. The processes of law alone are not capable of healing the hurt caused by our conflict.

Around 3500 people lost their lives during the troubles. Many of the cases remain unresolved. The very cold reality is that the older a case, the harder it is prosecute. While some cases will lend themselves to further progress through the judicial system, with forensic science providing the greatest chances; judicial closure is increasingly unlikely in the majority of cases. Memories have faded; witnesses and suspects may have died. The hurt however will not have eased and many families will have questions they still want answered.

In a speech similar to this, just three months after becoming Chief, I warned that “action is needed if policing, and indeed our peace process, is not to be dragged backward.” Months later it seemed that action had indeed been taken, in the form of the Stormont House Agreement. I welcomed and offered my full support to all the proposals set out in that agreement which seemed to offer a more holistic approach to dealing with the past. But over three years on, little has changed and the cost to policing continues to rise, not to mention the costs to individual victims and to society as a whole.

 

Conclusion

For this reason, I was very glad to see the Consultation on Addressing the Legacy of Northern Ireland’s Past finally published at the end of last week.

Further progress on dealing with the past will require political leadership and financial investment. I hope that we will see both materialise in the near future.

The politicians must take responsibility for making progress, but they cannot do it by themselves. It’s up to us - the people on this stage; the people in this room; and the many individuals and families who still hurt to this day – to help them find a way through.

As a society, we are still struggling to reach a collective way of acknowledging and remembering the hurt that has been experienced by so many in this part of the world. Through events such as this one today, we need to try to understand, not just our own story and experience of the past; but the story and experience of others.

We must be prepared to go beyond our comfort zones; to be selfless; to be ready to listen and have challenging but respectful conversations. Perhaps it is in spaces like this one, that we can truly find a way of healing the pain of our past.

 

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‘Victimhood and dealing with the Past in Northern Ireland’ - by Police Ombudsman Dr Michael Maguire

 

 

Good morning and thank you for the opportunity to speak with you today.

I am entering my 7th and final year in the role as Police Ombudsman and I speak to you this morning as someone who has had the responsibility for investigating legacy cases for the past 6 years.

As a spoiler it’s not my role to enter into the world of Northern Ireland politics, and nothing I say should be interpreted as such. That’s called getting your retaliation in first!

My observations are based on my practical experience of dealing with this controversial and difficult issue over that time period. My purpose this morning is to offer some thoughts around a new conversation around legacy issues, particularly in the context of the establishment of a new approach to dealing with the past in Northern Ireland.

In particular to think about the polarising debates around legacy and share some concerns for the future unless we develop a different approach to handling some of these sensitive and important issues.

I want to begin with a conversation I had with a family member who had a report from the office. They alleged “collusion” and in particular made reference to an individual who they argued was being protected. I was able to tell them that the individual concerned was in prison at the time of the murder and there was no evidence they had been involved. Their response was “I don’t believe you”.

On another occasion there was another allegation of “collusion” and we were able to determine there was no evidence that named individuals were involved. Again the view of the family member was disbelief as this had been their narrative for many years.

I give these examples, not to criticise the families involved, but rather to illustrate the difficulties in delivering messages of this type. Their view was “I believe this happened and you simply failed to find the evidence.” There is very little I can do to compete with such narratives, other than report on the evidence.

Unfortunately we cannot retain only our versions of the truth. As we move forward and what happened here is subject to more substantitive investigation and research the past is really considered, there will be uncomfortable truths for everyone. We cannot pick and choose. It raises the question of whether we will be able to accept the truth when it begins to emerge.

As you will be aware the Office has not been without its problems in this area – indeed my arrival in the job in 2012 came about as a consequence of how the office investigated legacy issues.

Of course for victims and their families the term “legacy” doesn’t work. For many the pain and suffering is very real and alive today. There is nothing historical about the cases for them.

During my period as Ombudsman:-

• I have published 6 legacy reports, most of which have been well received.
• I have had to take the PSNI to judicial review for the release of information,
• I have been subject to a judicial review around the powers of the office in relation to a legacy report; this is on-going
• I am cooperating with a criminal investigation into sensitive information allegedly stolen from the Office over 10 years ago concerning a legacy case.
• I have publically criticised my sponsor Department for failing to adequately fund this area of work.
• The funding for my office into legacy matters has also been the subject of a number of judicial reviews and appeals
• There have been calls for my resignation on a number of occasions - all this as a consequence of legacy related issues.

The legacy work of the Office comprises 23% of my budget.

I give these examples simply to highlight the challenges of the subject matter and its impact.

It is, however, one of the ironies of the Office that a discussion of the Police Ombudsman might be, to use the old football cliché, a “game of two halves”.

I get referrals from all political parties about contemporary policing issues. They deal with issues on the ground. The ability of the office to undertake an independent investigation often takes the heat out of what can be a tricky situation. This is the way it should be. As we have seen quite recently the fact that the Office can say “nothing to see here” is as important as when we criticise the police and recommend improvements.

Yet the conversation can turn very quickly when the discussion around legacy cases comes up. This is I realise not personal – the two previous Ombudsman – for very different reasons - had problems with legacy investigations. So to say it is a challenging topic is somewhat of an understatement.

Some of the critics of the office are effusive in their support for the concept of the police ombudsman - except when it comes to legacy issues.

Let me begin with what some might argue is the bleeding obvious. That is, the current ways of dealing with the past in Northern Ireland are not working. The current approaches are in my view:-

• Underfunded – PONI has around £2m per anum to deal with over 400 legacy cases. Inquests have not received the funding requested by the LCJ & the police themselves have said very publically dealing with the past impacts on the current policing budget.
• I would compare this with Operation Kenova which has in the region of £30m to examine around 50 potential cases.
• I only look at the police. The PSNI have a broader remit but can only conduct a limited number of investigations – there are thousands of unsolved murders
• Dysfunctional – an often used word. What it means in this context is that investigations are not joined up – and that there is no comprehensive approach to investigating legacy as organisations (eg HET) come and go.

I have said before it would be much better for the legacy work of the office and the police to be undertaken elsewhere – to allow both organisations to concentrate on contemporary policing issues without being drawn into the controversies of the past.

20 years after the Good Friday Agreement there is still no agreement on the way forward. I remember asking a senior politician why it was not dealt with at the time? His response was simple – we would not have got any agreement. It was simply kicked into touch.

So the problem remains unresolved. Various options have been considered at different times:-

• Do nothing or do minimum – I can’t help but think there is an element of wishful thinking here, as the problem will gradually resolve itself as those involved in the conflict die. This seems to me a particularly heartless solution as it leaves the majority of families who have been affected in Northern Ireland without answers and it continues to burden criminal justice organisations with a problem they cannot resolve without further funding. I also think it is impractical as I am finding that issues within families are becoming intergenerational. Put simply the problem will not go away but continue to fester and create difficulties.

 

• There have been at various times calls for a line to be drawn on the past – forget about it and move on – again this is wishful thinking by some – as the problems of the past will not go away. They will continue to be fought in different circumstances and different forums. The fact that we are still discussing these issues 20 years after the GFA tells us that the problem will not go away. This leaves the most recent manifestation of the issue. The debate around the structures arising from the Stormont House Agreement. The consultation document was, as we know, published last Friday.

 

It proposes various organisations to deal with different elements of the past, according to the wishes of victims and their families –

o Criminal justice investigations by the HIU

o Truth recovery & oral history etc…

My position, and the devil will be in the detail, is that in principal and in practice this has the potential to be a much better way of dealing with the past compared to now. It will be better funded, more comprehensive in approach and provide answers to those who do not want to enter into the blunt instrument that is the criminal justice system.

In considering the proposals let not the perfect be the enemy of the good.

There will be much argument around what such organisations need to do to be effective – I am sure much of this will be debated today. I will come back to the issues of structures and organisations later – but at this stage I think there is one area that needs to be debated up front - and that is why are we doing it – why are we investigating the past at all?

This may surprise you given my previous statements - but by asking the question I am not coming from the perspective that we should not investigate the past – families demand this to be the case – but rather a different question of what are we trying to achieve by dealing with the past?

In the recent book “Legacy” edited by Jeffrey Dudgeon there are a range of articles. One in particular by Trevor Ringland sets out an interesting challenge. In the article Trevor argues “In dealing with the consequences of the conflict, we must maintain a focus on the challenge to build a peaceful, stable and shared society in Northern Ireland, on this island and between these islands”

I take this to mean that there has to be an end goal of dealing with the past – it is not just a means to an end in itself. In this context it is necessary to pose the question of whether mechanisms for dealing with the past will make matters better or worse. One of the core principles of the Stormont House Agreement was to “promote reconciliation”.

Much of the debates / arguments I have seen around the implementation of the Stormont House Agreement have been institutional / operational in nature – what should the time period be? What about the appeal mechanism? When should the clock start on funding? What are the powers of the Director?

This is not to undermine the importance of these issues – let me be very clear – they are hugely important so that the proposed organisations start with a foundation of credibility and support.

But there is little debate about what we are trying to achieve beyond platitudes to answer the needs to victims and families. In my view the needs of victims and families and indeed future generations will not be served if we fail to have some sense of where we want to go in dealing with the problems of the past. Will we end up creating more divisions?

Our experience is not positive. The current debate on controlling the narrative of the past is a case in point. Some would argue that the narrative has been controlled by those who wish to criticise the state at the expense of those who carried out the majority of the killings. There are allegations of a “rewriting the past”, much of which focuses around the term “collusion”. This varies from - there may have been “bad apples”, to a complete rejection of the concept at all – the “collusion lie”.

Alternatively, there are those who place collusion at the heart of the troubles in Northern Ireland and argue that intelligence led policing created the circumstances of systematic and widespread collusion between the elements of the state and paramilitaries of both sides.

Let me digress for a second and challenge the assertion made by some that PONI is fixated with the term collusion. It is simply not borne out by the facts. In the 17 years history of the Office we have published 14 reports into collusion between the police and paramilitaries and found this to be the case in 3 cases, one for each Ombudsman. I personally have examined 6 legacy cases and called it only once - in the circumstances around the Loughlinisland murders. This as you will be aware is the subject of an on-going judicial review. Furthermore, the definition I used by Judge Smithwick was to try and get some consistency into the debate. It helped that it was a definition accepted by the PSNI. There were some who were happy to accept this definition when it was used to say there was collusion between An Garda Siochana and the IRA in the murder of two RUC officers – but criticised it as being too wide when used in Northern Ireland. What I have also noticed is a cherry picking approach to reports which is regrettable – the banking of conclusions which are liked and a challenge to the conclusions which are disagreed with.

Again this illustrates the contested space that is our history. Contrary to the opinion of some I have no agenda when it comes to any report. As I said last week a report which says the police did no wrong is as important as one which is critical of policing - both now and in the past. But I digress. The question remains as to whether we as a society can begin to heal around the past without challenging some of the orthodoxies on both sides. Can the discussion on the past be meaningful without being polarising?

Again, experience is against us. I would suggest that the competing narratives of the past in Northern Ireland are more polarised now than ever before. Some would argue that controlling the narrative of the past is the new battleground.

Is there a different way and what does it look like? At a political level the answer is probably no as the debate inevitably becomes a zero sum position. If I win - you lose.

Indeed it is likely to become even more polarised in the absence of political structures to provide a forum for this debate and in the absence of this both sides of the argument will continue to shout over the wall at each other, with increasing bitterness and volume.

Clearly, how the work of the Stormont House Agreement institutions land will be impacted by a range of factors. They include the political context and a political vacuum does not help.

Some of these issues will be addressed by process. What will be the governance of the HIU, who will be involved and how will reports be delivered and so on? These issues as I have said are hugely important to build confidence in the work of the Unit at an early stage.

What is clear is that investigating the past in the same way and expecting different results will not work. How will we ensure that divisions are not healed but widened? For example, how will the HIU address difficult issues such as “collusion?”

I think there is some work that needs to be done to prepare the ground. It is possible, and I fully appreciate this may be wishful thinking, to have non polarised debate on the topic of collusion.

A number of things need to happen. Firstly at a basic level we need to move beyond entrenched positions. Put simply – there is no collusion lie – it did exist, people died and others escaped justice as a consequence. There is too much evidence to suggest otherwise. Leaving aside my own reports in this area there is a mountain of evidence that people were protected and bad things happened as a consequence.

Judge Smithwick took the view that while collusion can of course amount to criminal conduct it is a significantly broader concept which will include other forms of behaviour which may not necessarily be criminal but which should be opposed on moral and/or official grounds. In any case there is a difference in having information about criminality and being able to translate it into signed witness statements.

To suggest that simply because no officers have never been prosecuted means that it didn’t happen, doesn’t make sense to me and is contrary to the evidence I, and significantly others, have seen and reported on.

Yes, it needs to be said again that the widespread use of informants saved lives. But an absolute position that failures were few and far between and that the end justified the means is not borne out by the evidence.

Likewise, any position which takes the view collusion was policing policy and as a consequence systematic and endemic is at odds will all the evidence I have seen and this is likely to be the case for the HIU as well. We are then stuck in the position of “I believe this happened and you simply failed to find the evidence.” That does not mean there were no investigative failures or that the management of informants was on occasion considerably flawed. But to call this institutional failure “collusion” in every case is to distort and dilute what actually happened and to introduce a toxicity into the debate which is, as we have seen, profoundly unhelpful. So going back to the starting point that in considering the implementation of the Stormont House Agreement organisations I recognise there is an immediate challenge in establishing an organisation that has the confidence of those who will be dealing with it.

As it stands the proposed HIU picks the can up and kicks it further down the road. The good thing is that there are other mechanisms (oral history, information retrieval, reconciliation group) which aim to deal with the challenges of the past in a way which has not been done before. To get different results we need to do things differently in thinking about the past and what it means.

The wider challenge, therefore, and perhaps a more difficult one, is to ensure that the end result must be one of building a stable and shared society rather than undermining its foundations. There are uncomfortable truths to be told – how we are going to tell them and how we respond will be the critical issue.