Can HET be Article 2 Compliant? Questions for Her Majesty’s Inspector of Constabulary

by Donal Lyons on June 3, 2014

We welcome this guest post by Brian Gormally, Director of the Committee on the Administration of Justice (CAJ)

Can HET be Article 2 Compliant? Questions for Her Majesty’s Inspector of Constabulary

Introduction

In May Brice Dickson, Chair of the NI Policing Board’s Historical Enquiry Team (HET) Working Group, wrote to a number of interested parties updating us on the Group’s progress. Amongst other things, the letter indicated that that the Working Group had sent a report to Her Majesty’s Inspector of Constabulary (HMIC) asking him to undertake a follow-up review to evaluate the progress in implementation of the 20 recommendations that the earlier Inspection of the HET had made. The letter acknowledged that the HMIC had framed the implementation of the recommendations in terms of compliance with Article 2 of the European Convention on Human Rights (ECHR) and had asked it to ascertain “if the changes made by the Chief Constable ensure the Article 2 independence of the HET.”

In response to the letter, CAJ raised a number of points. First, the original HMIC inspection report, for all its valuable aspects, was a thoroughly confused and confusing document when it addressed Article 2 independence issues. Second, the HET is now debarred from investigating cases – it must restrict itself to “review” and where evidence meriting investigation is found, the case must be passed on to branch C2 of the PSNI; it cannot therefore, on its own, meet the Article 2 standard of effectiveness. Third, for these and other reasons, we did not believe that the implementation of the 20 recommendations in the HMIC Report would make HET Article 2 compliant. We also asked for a copy of the report that the working group had submitted to HMIC.

We consider some of these issues further below in the context of a re-examination of the HMIC’s pronouncements on Article 2 compliance in its original Inspection Report. We conclude by putting some questions to HMIC which we believe it should answer before undertaking its follow-up review of the HET.

Scope of the HET

Historically, there have been confused messages about the scope of the HET’s work coming from the UK Government and the Police Service. However, from early on in the process, the Secretariat of the Committee of Ministers (CM) of the Council of Europe has been clear that the HET, on its own, could not comply fully with Article 2. The HMIC summarised their position thus:

“The Secretariat to the CM acknowledged that the HET would not be carrying out Article 2 compliant investigations in historical cases. Rather, it was envisaged that the HET could be a useful model for bringing a “measure of resolution” to those affected by “the troubles‟, and that institutions, such as the HET, “could play an important role” in satisfying the state’s continuing obligation to conduct effective Article 2 investigations, when taken together with other measures.” (CM/Inf/DH(2008)2 revised, 19 November 2008, paragraph 49. Quoted in HMIC Report p.89)

This view of the Secretariat originates in the first report dealing with HET – CM/Inf/DH(2006)4 revised 2 – and is repeated in subsequent years until the “signing off” of HET in 2009 (CM/ResDH(2009)44). There is no particular reason given for this view and it is not clear what aspect of HET’s role led to this conclusion, especially since the UK Government at this time was arguing that HET had an investigative as well as a review role.

In what may be an oblique criticism of the understanding of the CM Secretariat, as well as of the HET itself, the HMIC report comments: “We have found that the extent of the HET‟s role in conducting investigations has not been clearly understood; resulting in some confusion, internally and externally, about what the HET is intended to deliver.” (HMIC Report p.89)

However, since 2010 the HET should pass on to C2 branch of the PSNI for proper criminal investigation a case where there is a realistic evidential opportunity that needs to be developed and progressed by executive action requiring the use of police powers. However, Article 2 requires an investigation that is capable of bringing perpetrators to justice (see Mahmut Kaya v. Turkey [2000] 22535/93 §§ 124-6 for how Article 2 interacts with Article 13 in cases involving the unlawful deprivation of life) which a HET review cannot provide. In our view, therefore, the Article 2 compliance of the HET in such cases cannot be properly assessed outside of an examination in such terms of the PSNI itself.

This point needs to be made crystal clear, both by the Policing Board and the HMIC – the HET can only be, at best, a part of an Article 2 compliant process; it cannot meet the obligations of a proper investigation by itself. Without this caveat being given due prominence, any analysis of the extent of HET’s compliance with Article 2 risks giving a misleading view.

HMIC’s View of Article 2 Compliance

To be fair, the HMIC Report does make the above caveat before applying an Article 2 test to the HET:

“Although the CM did not envisage that the HET would satisfy the Article 2 investigative requirement by itself, we have considered…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.” (HMIC Report p.90)

The four tests are independence, effectiveness, promptness and transparency and accountability.

Independence

On page 90 of the Report, the Inspectors set out a summary version of the independence test:

“In order for an investigation to be Article 2 compliant, the persons responsible for and carrying out the investigation must be independent, both structurally and practically, from those implicated in the events.”

What follows is perhaps the most difficult and confusing part of the Report. It appears from many of the succeeding passages that the HMIC regards both the RUC and the PSNI as potentially “implicated in the events.” The Report goes on to say that:

“The Director of the HET stated that cases of state involvement are assigned to the red and white teams, which are in principle staffed by people not previously associated with the RUC or the PSNI.”

The inescapable implication is that independence in these cases would be undermined if some of those involved were people previously associated with the RUC or the PSNI. The next few sentences of the Report are confusing in that they seem to present pros and cons as to how close the structural connection is between the PSNI and HET without coming to any clear conclusion.

“Also, the only connection between the two has been the reporting line between the Director of the HET and the Chief Constable. However, a number of NGOs state that the line of accountability was, in fact, between the ACC – Crime Operations and the Director of the HET. Furthermore, the HET is a unit of the PSNI and is located in police premises. In our view the NGOs found and produced credible evidence that the line of accountability is with ACC crime operations.” HMIC Report p.90)

This actually contradicts a statement the Report makes on page 49 which accepts the PSNI contention that the line is in reality direct to the Chief Constable. However, at this point the Report calls in aid the 2008 verdict of the Secretariat to the Committee of Ministers which said:
:
“[t]o provide reassurances about operational independence, the HET reports directly to the Chief Constable. It is largely staffed by retired senior police officers from Scotland, Wales and England. There is [sic] also a number of serving police officers seconded from other police forces across the UK. A number of retired Royal Ulster Constabulary officers, as well as several serving PSNI officers work with the HET. These latter officers work in a separate team and only on cases where families have raised no concerns about the independence of the investigation. The officers are required to declare any past interest in a case and no officer will work on a case in which they have previously been involved.”

On this basis, the Secretariat considered, having regard to the structural arrangements and organisation of the HET, that it was independent for ECHR purposes. There may well be arguments about the extent to which the HET is actually structurally independent from the PSNI – however, the point here is that both the HMIC and the CM Secretariat appear to believe that such structural independence is necessary for Article 2 compliance. This is in blatant contradiction to the view expressed in Recommendation 15 that the rule requiring the passing on of cases where there are investigative opportunities to the PSNI be strictly enforced. The position appears to be that the reviewing body (HET) must be independent of the investigative body (PSNI), presumably because the latter might be “implicated in the events,” but to which it must pass cases once there is any danger of a prosecution occurring.

CAJ’s view is that any Article 2 compliant investigative body must be independent from the PSNI as currently constituted, because the Service is not structurally or practically independent from those (RUC officers, Security Service personnel, soldiers acting in various capacities and agents run by the respective organisations) who may have been implicated in events being investigated, especially in cases with state involvement (see our detailed paper on the matter here: http://www.caj.org.uk/contents/1240). However, we need clarity on their views from the Policing Board, the PSNI and the HMIC if we are to have any confidence in the review process that the HMIC has been asked to undertake.

In the original HMIC Report their considered view is “The structure of the HET, therefore, would appear to guarantee the necessary independence in principle. However, our findings raise two concerns in relation to whether the HET’s processes, in practice, reach the required level of independence for the purposes of Article 2.” These two concerns are the “self-declaration” (that they had no connection with the case) system for investigating officers and the staffing of both the HET and PSNI intelligence units.

After detailing a case in which an ex-RUC officer led a HET investigation, in contradiction to assurances and the views of the family, in which he actually knew the original investigating officer, the HMIC Report expresses “grave concern” that there is no objective system of vetting that guarantees that investigators have no previous connection with the case. They say:

“Through our examination of the process used to exclude PSNI and RUC officers from state involved cases, we found that the HET adopted a ‘self-declaration’ process. HET staff are required to declare their previous involvement or prior knowledge in cases. We did not find any evidence that these declarations were subject to any formal checks and validation.” (HMIC Report p.92)

The Report goes on to say that “We consider that the independence necessary to satisfy Article 2 can only be guaranteed if former RUC officers are not involved in investigating state involvement cases, and if processes designed to ensure this are, in fact, effective.” Recommendation 20 suggests such a system is put in place.

This is all well and good, but it is not made clear what the actual issue is. The process involved is “to exclude PSNI and RUC officers” from cases with state involvement. However, the next reference is that RUC officers cannot investigate state involvement cases to meet Article 2 independence and the actual recommendation is to vet staff regarding any previous involvement in cases. So what is necessary here for independence? Is it that all PSNI and ex-RUC officers be excluded from state involvement cases, just ex-RUC officers or only those of whatever previous service who were actually involved in the cases being investigated? We need clarity on what the actual expectations of the HMIC were before any review of changes made in response to their recommendations can be properly evaluated.

The next section raises matters which are of the highest importance, not just as far as HET is concerned but for all mechanisms for dealing with the past that rely on police intelligence as part of their investigative process. It is worth quoting in full as it summarises more detailed comments earlier in the Report:

“Secondly, as we have detailed, the HET‟s intelligence unit is staffed largely by former employees of either the RUC or the PSNI. Staff in the PSNI intelligence branch, some of whom are former RUC special branch officers, are the gatekeepers for intelligence being passed to the HET. The assembling of relevant intelligence material plays a central role in the review process and in any subsequent investigation.

“Staff in the HET intelligence unit and the PSNI intelligence branch process intelligence requests originating from the HET reviews. Given the sensitivity of intelligence matters in the context of Northern Ireland, the HET needs to do everything it can to make sure its independence is safeguarded. “

Again, and in spite of the forthright language, it is not entirely clear what the issue is here. Is it the presence of ex-RUC Special Branch officers in the PSNI Intelligence Branch acting as gatekeepers? Is it that the HET intelligence unit is staffed “largely by former employees of either the RUC or the PSNI”? Or does the combination of both factors fatally flaw this aspect of independence?

The solution proposed in the text is that “it would be preferable to institute some independent procedure for guaranteeing that all relevant intelligence in every case is made available for the purposes of review, to ensure compliance with the Article 2 standard.” This is an important suggestion but, for some reason, it is not formulated as a recommendation. The nearest in meaning is Recommendation 11 which reads: “The HET should implement an independent audit process to verify that HET staff have the benefit of all appropriate intelligence material held by the PSNI.” HMIC Report p.70) However, that recommendation was in respect of a past process of “dip-sampling” cases by an independent police officer and it is not clear how such an independent process would work. We might also comment that this is a bigger problem than HET – inquests are being unlawfully (according to the European Court and our local High Court) delayed by problems with the disclosure of intelligence material and the process is completely opaque as regards C2 investigations.

Effectiveness

The HMIC express their “general concern about the lack of explicit systems and processes underlying the HET operation” (HMIC Report p.93). They point to examples such as “storage and cataloguing of relevant material is haphazard and inconsistent; there is no standard format for recording policy decisions; and many such decisions are not recorded at all.” There are no quality assurance processes and “These failings threaten to undermine the HET‟s effectiveness.”

The Report then moves on to discuss “a more serious, and specific, concern…relating to the approach adopted by the HET in relation to state involvement cases.” Pages 74 to 87 of the Report detail the Inspectors’ shock and indignation at the way HET has approached cases with possible state involvement, especially those involving the British Army. In summary, their concerns are:

• The HET Operational Guide wrongly and unlawfully makes a distinction between the actions of state agents and others

• The Red Team, dealing with state involvement cases, is the only team that sometimes interviews people under caution – in all other cases they are referred on to C2

• The “pragmatic approach” allows a HET investigator to dispense with a caution in such cases at his discretion

• Where state agents are interviewed under caution they are provided with extensive pre-interview disclosure of evidence, contrary to the practice in any other case or normal police practice

• Verification is not sought when a state interviewee claims to be too ill for interview

• Such cases are not referred on to C2 – not one state involvement case has been referred on since 2010

The Report concludes:

“We consider that the HET‟s approach to state involvement cases in this regard is inconsistent with the UK‟s obligations under Article 2 ECHR. As well as undermining the effectiveness of the review in Article 2 terms, the inconsistency in the way that state involvement and non-state involvement cases are treated easily gives rise to what may be well-founded suspicions that the process lacks independence.”

Although it is not spelled out by the Report, we may assume that the lack of independence here refers to a lack of “practical independence.” The leading case on the investigative obligation of Article 2 Jordan says that independence “means not only a lack of hierarchical or institutional connection but also a practical independence” (Jordan v UK [2001] 24746/94§106). Given that the Inspectors seem to believe that the HET possesses hierarchical and institutional independence, it must be the actual practice of the HET in state involvement cases that demonstrates their lack of independence “from those implicated in the events,” i.e. state actors involved in killings.

Recommendations 15 to 19 express HMIC’s solutions to the problems they have identified, which include systems to prevent the “inconsistency” with regard to state involvement cases. However, Recommendations 15 and 17 refer to the importance of passing on cases which reach an investigative threshold to C2 for a proper police investigation.

It is not explained – nor in our view is it explicable – how referring cases from one branch of the PSNI (the HET) to another (C2) deals with the problems identified. After all, the Chief Constable was as much in control of HET throughout the period of its unlawful policy as he was of C2 – is there evidence that C2 deals impartially and objectively with cases in which former colleagues or other state actors may be implicated? Perhaps an inspection of such cases is necessary to find out.

Promptness

It is recognised that the requirement of promptness cannot be properly met in terms of historic cases. The HMIC consider that reasonable expedition in working through cases is the appropriate way to meet this obligation in practice and makes some recommendations that are designed to ensure that this happens.

Transparency and Accountability

The HMIC consider that transparency could be improved by explicit and public terms of reference and policies, a formal complaints procedure should be published and the Chief Constable and the Policing Board should consider ways in which the HET could be made more open and accountable to the public.

Conclusion

In relation to Article 2 compatibility, the HMIC Report concludes:

“Taken together, our conclusions lead us to consider that the HET‟s approach to state involvement cases is inconsistent with the UK‟s obligations under Article 2 ECHR. The inconsistency in the way that state involvement and non-state involvement cases are dealt with undermines the effectiveness of the review process in Article 2 terms. In addition, the deployment of former RUC and PSNI officers in state involvement easily gives rise to the view that the process lacks independence.”

The last sentence is again an expression of an apparent view that the involvement of former PSNI, as well as former RUC officers vitiates the independence of an investigative mechanism.

Questions for HMIC

In preparation for their follow-up review of the HET in terms of Article 2 compliance, and in light of the foregoing analysis of their original report, CAJ would like to ask HMIC the following questions:

How does the HET fit into other mechanisms, in terms of scope and operations, to meet Article 2 obligations?

Can the HET be Article 2 compliant when it cannot lead to the identification and punishment of those responsible for unlawful deaths?

Is it necessary for the HET to be independent of the PSNI (as is suggested numerous times in the text) to be Article 2 compliant?

If so, how can the referral of cases to a PSNI unit (C2)be Article 2 compliant?

Apart from the past opinion of the Secretariat of the CM, what is the evidence that the HET is hierarchically and institutionally independent of the PSNI?

In relation to the proposed vetting system, is it that all PSNI and ex-RUC officers should be excluded from state involvement cases, just ex-RUC officers or only those of whatever previous service who were actually involved in the cases being investigated?

What is the level of independent scrutiny necessary to ensure that the day-to-day control of intelligence by ex-RUC officers becomes Article 2 compliant?

Has the Chief Constable taken responsibility for 8 years of unlawful bias in state involvement cases in a unit under his control and is the HMIC assured that this policy does not apply in other parts of the PSNI?

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