Rights NI is delighted to welcome this guest post from Christopher Stanley. Christopher Stanley is Legal Officer with Rights Watch (UK) and can be reached at cstanley@rwuk.org.
Regarding any potential future for the Historical Enquires Team of the PSNI the point must be taken that by replacing one senior management team with another senior management team will not suffice. It will not suffice because it is the issue of personnel which is central to the structural problems identified in the recent report of the HMIC presented to the Northern Ireland Policing Board. Not only is there the question of the legality of the operations of the HET in relation to the conflict related deaths where there was state involvement (and I would broaden this from the British army cases to include the role of RUC Special Branch, MI5 and the Force Research Unit) but also the question of the role of police personnel as investigators of violations and as the gatekeepers of the related intelligence in the secret archives of the state. There is a further point which is the absence in the HET structure of any prosecutorial reference point and therefore no external criteria for assessing prosecution prospects or immunity from suite. The existing senior management of the HET was (or it might be an is by now at the time of writing) dominated by former officers of the Metropolitan Police who had roles in the Stevens Inquiries (and I would add to this list those on secondment or contracted to the HET) must go because it is clear from the findings of the HMIC that they were ‘working’ within a culture reeking of historical as opposed to contemporary policing methods (for example the absence of reference to prosecutors, the ACPO Manual on reviews and investigations). And a number of these senior managers of the HET have (or had) been in Northern Ireland a very long time if their contribution to Stevens is taken into account.
However, for the Chief Constable to simply parachute in a new senior management team into the HET is not acceptable and should be the subject of further heated discussions with the Northern Ireland Policing Board, from whom the Chief Constable should take his steer on this sensitive issue in the light of the recent problems with OPONI, the backlog of historical inquests, the acquittals in the Masserene Barracks murder trial, the intimidation of defence lawyers, the controversy over the use of stop and search and so on and so forth. A replacement management team is a knee-jerk reaction which does not address either the viability of the future of the HET in the wake of the fatal constructive criticisms made by the HMIC which have diminished its already tarnished public reputation or to confront that it the personnel of the HET which is a central problem with its credibility. A simple change of uniform will not do. It is clear that the Chief Constable does not understand this not too subtle idea as he did not understand the word suspend when the Northern Ireland Policing Board demanded the suspension of all HET work in the British military cases.
The reason why introducing a new senior management team into the HET will not do is threefold. First, there should now be a period to examine the very existence of the HET before investing bad money after bad. Second, the future of the HET should be considered in terms of the overall future of Dealing with the Past in Northern Ireland and in the context of the forthcoming Haass talks. Third, whilst I accept the need for a police presence in the process of investigating (as opposed to reviewing) the legacy of the conflict related deaths (although this does not need to be exclusively so – others can investigate also, and I am not suggesting a Salamanca- like reliance on historians) it is both the management of this police presence and the relationship between the police and the state held intelligence which is important. The requirement for independence which is central in the Strasbourg jurisprudence of the McKerr group of cases and after in terms of the discharge function obligation when there has been a violation of the Article 2 right to life human rights standard is the test for the credibility of the investigation of these violations of the failure of the state to protect life or the act of the state in using force to take life. The function of the state agent in this process of investigation – the detective – and his or relation to the intelligence held by the state about the violation is what needs to be examined and how the immediate closure of independence can be circumscribed by an independent review and audit mechanism and an independent management of the intelligence.
The whole process of police involvement in Article 2 investigations must be scrutinised and independent mechanisms introduced into the hierarchical structures which presently exist. The whole process through which intelligence is held and distributed either by the police or the security services must be similarly examined. The current arrangements are wholly unsatisfactory as the HMIC have pointed out in their constructive observations and recommendations. The transfer mechanism of PSNI intelligence to the HET in addition to the referral system from the HET to PSNI C2 are cases in point: there is not even a hint of independent scrutiny necessary for a glimpse of Article 2 compliance credibility in this present structure. Therefore, simply to replace an old Met culture at the HET with a shiny C2 culture from the PSNI is not acceptable without a new independent management structure and new mechanisms to handle intelligence. This means the Northern Ireland Policing Board must not only look at the findings and recommendations of the HMIC but must also step into the issue of Dealing with the Past which a senior law office recently described as ‘drifting along in a vacuum of uncertainty’. Replacing Mr Cox with Mr Harris will not do.