MRS NUALA O’LOAN

POLICE OMBUDSMAN FOR NORTHERN IRELAND

INDEPENDENT INVESTIGATION INTO POLICE CONDUCT IN AN ENVIRONMENT OF TERRORISM

THE EIGHTH ANNUAL CONFERENCE OF NACOLE

CAMBRIDGE, MASSACHUSSETS, USA

1 NOVEMBER 2002

For those of us living in Northern Ireland the impact of our thirty years of “Troubles” has diminished somewhat. Northern Ireland is a very beautiful country, populated by a very good people. It sometimes seems to me that it is important to remember this.

Terrorism has been part of life in Northern Ireland for over thirty years. Between 1969 and 2002, 3352 people have been murdered. 957 members of the security forces were murdered, of whom 302 were police officers. In addition to this some 48,000 people have been injured, of whom 11,587 are members of the police service. These are the raw statistics of suffering in a country of 1.6 million people – the size perhaps of your own city of Philadelphia. They do not include the suicides, the other related deaths, and the number of people who struggle to keep living lives which are blighted beyond repair by loss and injury and death.

I do not think that I need to articulate to you the other effects of terrorism – the damage to the economy because of reluctance to establish business lest that business be bombed, its executives kidnapped or murdered; the loss of revenue from tourism because tourists are afraid to go to a place which their televisions depict as being dangerous; the loss of self-confidence and self esteem among those who cannot get jobs; the ghettoising of communities which live in fear of each other; the suspicion and hatred which is the inevitable result of generations who grow up fearing that those who walk down the street, go to school with them, work with them, may be the people who emerge to bomb, to shoot and to kill.

It is a terrible catalogue of death, pain, fear, horror, agony… It has had an incalculable effect on our people, especially our young people. You too have seen your own horror and pain, most terribly on September 11 last, when that which had seemed unthinkable occurred. More recently in Bali we have seen carnage on a massive scale. Just last weekend we saw the terrible suffering in Moscow. We remember at this time all those who have suffered and lost and who go on suffering.

One of the inevitable consequences of living day to day in a terrorist situation is that policing is affected. Normal community policing involves ready and open interactions between the police and those who are policed. In the United Kingdom there is a long tradition that police officers are not routinely armed. That is not the case in Northern Ireland. Police officers are armed primarily to enable them to protect themselves against the threat of murder. Our police stations are heavily fortified to resist bomb and bullet. They are intimidating in appearance. They are not suggestive of the welcoming and protective arm of the law with which I grew up. But it is not just the physical appearance of policing which is modified in a terrorist situation. The way of policing must evolve to meet the challenges of anti-terrorism.

Police officers in this situation do their job day in, day out in dangerous circumstances. I wish to pay tribute now to those many brave officers of the RUC, 302 of them, who lost their lives, to those who suffered and continue to suffer and to their wives, children and families who grieved and suffer also. So many officers of the RUC, now the Police Service of Northern Ireland, have done their job as best they can in the most difficult of circumstances. It is right that their bravery and their sacrifice should be acknowledged.

One of the consequences of the style of policing required in a terrorist situation is that the policing family becomes inward looking and instinctively protective. Energies are focused on the anti-terrorist situation. Officers have learned to protect one another and to make survival the priority. This is understandable but the consequence is that the delivery of the policing service to the public is primarily qualified by the need to be alert to the threat to life. In addition to this we had, in Northern Ireland the situation in which for many years the police were perceived by one part of the population as “their police”. Just as Stormont was at one time described (by Sir James Craig, later Lord Craigavon) as “a Protestant government for a Protestant people”, so there was, among many people, a perception that the RUC was a Protestant police force, a fact which became a reality as 93% of the police force was Protestant.

A further factor is that in Northern Ireland, because we live in an ongoing terrorist situation, the role of Special Branch, the anti-terrorist intelligence arm of the police, has developed very significantly. Infiltration of terrorist organisations, the recruitment and management of informants, the gathering and assessment of intelligence, the protection of vital sources, have all been critical issues. In addition to this the years since the ceasefire of 1994 have seen a significant increase in the volume of organised serious crime. Paramilitaries have turned their attention to the lucrative businesses of drugs, smuggling, highly organised protection rackets, fraud and money laundering. Sectarian murders and attacks are still occurring, and there are allegations that paramilitary murderers, both republican and loyalist, who are alleged to be informants are walking the streets unhindered. We have also seen the conviction of both police officers and military personnel for murders committed with loyalist paramilitaries. These convictions were few, by comparison with the total number of officers who have served, but they are of the utmost importance.

It was into this situation that Parliament legislated for the creation of my office. I am charged to receive and investigate all allegations, criminal or disciplinary against police officers. All complaints in relation to police conduct must come to me. Matters can be referred to me by the Chief Constable, Secretary of State and Policing Board. All the investigation is done by my office. The PSNI play no part in these investigations. Unlike the situation in which many of you find yourself we are not simply an oversight body. We are a primary investigation body. I can not emphasise this too strongly. It is key to an understanding of what I want to say now.

The complaints for which I am responsible range from allegations of incivility to allegations of murder. In discussing the operation of an independent police complaints system in the context of terrorism, I want to concentrate on the investigation of serious crime, and the extent of the powers and responsibilities which necessarily attach to such investigations. I will refer also to the need for intelligence led anti-terrorist policing to be an integral part of the policing process, and to the significance of my independence for the contribution which my office can make to the future of policing.

When carrying out an investigation my investigators have all the powers of a constable under the law. This means that we can, and have, arrested police officers, we preserve and forensicate crime scenes, we carry out searches, and seize documentation and other materials. I have the right to be given any material or documentation which I require from the police. Nothing can be withheld from me. This is a very necessary power. I have made use of all the powers which I have available to me.

My Office is independent of the police, the government and political parties. It is evidence driven. I have the power to initiate an investigation without a complaint if I believe that an officer may have committed a criminal or disciplinary offence. I have used that power. We will make every effort to secure evidence, and having gathered that evidence I will use it. I will not and do not allow my office to be used for political purposes. We offer an equal service to all the people of Northern Ireland.

My job is to provide a service which independently investigates allegations against the police. Nothing more, but nothing less. In the exercise of my powers I will where necessary make recommendations against any officer, of any rank. The Office monitors and reports on trends and patterns in complaints. I have a power to research police practice and policy. Under the Weston Park Agreements in relation to the implementation of the Good Friday Agreement, I am to receive enhanced power to investigate policy and practice. I report to Parliament through the Secretary of State, to the Policing Board, to the Chief Constable and to the people.

My first Annual Report is available on the web at www.policeombudsman.org and copies are available today to those who are interested. I think that it demonstrates clearly the extent of the responsibilities which I carry, and the opportunities for improved policing which derive from this new and unique system of dealing with police complaints. Our most recent statistics, collected by an independent agency soon after my Omagh Report, show that 86% of the population believe that I am independent, that 79% of the population believe that I will be fair if they complain and that 72% think that my office will make a contribution to improved policing in Northern Ireland. We have worked very hard during the last two years to establish procedures and structures and quality assurance mechanisms which will ensure, as best we can, that we deliver a fair and effective service to everyone.

Many of the allegations which we receive relate in some form or other to the terrorist context. For example, on Monday last I was addressing the Northern Ireland Women’s Aid Federation, a group which exists to help those who are subject to domestic violence. It was said to me, and it caused a ripple of agreement from the audience, that security force informants who commit crimes of domestic violence are not being dealt with properly; that even when they have committed a very serious assault on a woman, they are simply taken out of the matrimonial home, told to behave and then released a little time later. It was said that they then return to their terrified wives and partners who say that, because of this situation, they are sometimes too afraid to call the police. It just makes things worse. Again, I have been told by both sides of the community that identifiable and known drug dealers operate with impunity because they are informants. We have also received a few allegations that police officers are engaged in drug dealing. Perhaps most sinister of all are the allegations that police officers are or have been involved in sectarian murder or have failed to investigate murder or very serious crime. Those allegations form only a small number of our total complaints. They are not, generally, matters which will be investigated or solved quickly or easily.

They are matters which demand the most serious of attention. Some of these investigations of allegations of failure to investigate by the police, have disclosed adequate investigations. The deficiency lay in the failure to communicate to families the extent of the police investigation. In investigating such allegations we do need, and very largely get, the support and co-operation of individual officers, the police service and of the people. We have worked hard to secure the confidence of the Police service. The first comments made by the recently appointed Chief Constable, Hugh Orde referred in very positive terms to my office. I welcomed those comments, and his commitment to work to ensure the best possible police service. We, in our turn, must provide a service which cares equally for those who complain and those against whom complaints are made. In all our actions we seek to respect and recognise the human rights of police officers and civilians. We receive information from whistle-blowers within the police service, both serving and retired.

I want to talk about a few cases, particularly my Omagh investigation, because I think that they will illustrate graphically the importance of my independence, and also the difficulties of the work which we do.

On 15 August 1998 at 3.05 pm a massive car bomb exploded in the little county town of Omagh. It was a warm Saturday afternoon. People were out shopping – getting children ready to go back to school, buying an outfit for a special occasion, a pair of shoes for a two year old bridesmaid – the ordinary things that people do on Saturday afternoon. At 2.29 a warning was received that a bomb was going to explode. As police cleared the streets the bomb exploded. 29 people and two unborn children died in the explosion. 259 people were injured, some of them suffering terrible injury. There was massive damage to property. All this in a town with a population of some 20,000 people. The pictures of the devastation of Omagh were beamed across the world. The Chief Constable said that “those responsible would be brought to justice” and that all necessary resources would be dedicated to the investigation, that “no stone would be left unturned”.

No person has been charged in relation to the Omagh bomb since that day by the RUC/PSNI.

Responsibility was claimed by RIRA. Last week RIRA announced that they had been assisted by CIRA in carrying out the bomb attack. The Omagh bomb was the 8^th explosion in Northern Ireland in 1998 – previous explosions had occurred in Enniskillen, Moira, Lisburn, Beleek, Newry and Banbridge. It was a bad year.

On 29^th July 2001 a newspaper reported that a police informant claimed that he had told the police three days before the Omagh bomb exploded that a republican terrorist was planning something. The inference was that the Omagh bomb could have been prevented. This caused widespread concern. The police response was that no such warning had been received.

I decided that we must examine this allegation, expecting that there could be no truth to what was said, but nonetheless determined that we must establish the truth. The rest is history. We found that there had been a warning, not specific to Omagh. We also found that on 04 August eleven days before the bomb exploded another warning was received, which was very specific and which named persons who would be involved in “an attack on police in Omagh on 15 August”. Limited action had been taken, and the warning had been dismissed as being of no consequence. It was subsequently marked “does not refer to Omagh”. The District Commander was not told. No preventative action was considered or taken that day in Omagh. Action clearly should have been taken and the District Commander should have been told.

We also found that those named in the 04 August information had not been investigated. We do not know, to this day, whether those individuals had any part in the Omagh bomb. Any role that they may have had had not been examined as I reported. We examined a vast amount of the intelligence available during a one year period in relation to the 1998 bombings to create a picture of dissident republican activity. Over 75% of that intelligence had not been made available to those investigating the Omagh bomb or the other RIRA bombs that year.

We examined the police investigation to see whether there had been any misconduct in relation to these warnings. I want to state clearly, as I have done before, that “the persons responsible for the Omagh Bombing are the terrorists who planned and executed the atrocity. This is a clear and unequivocal fact.”

Following publication of my Report and consideration thereof the Policing Board has, in effect, acted on the main substance of my recommendations. There is now a new Omagh Senior Investigating Officer dedicated full time to the investigation, who has no other responsibilities. The Policing Board has appointed two senior officers from England to ensure that the investigation is properly resourced and conducted. A review of Special Branch procedures is under way. The sad fact is that four years on much investigative opportunity has been lost. It is to be hoped that the apparently robust new investigation team, which now has full senior officer involvement, will continue to be properly resourced and will be effective.

I thought it might be helpful to articulate the way in which we approach these investigations. Effectively the critical questions are:

What is alleged that the officers did wrongly or failed to do?

What does the evidence, if any, show in relation to these allegations?

What was the context of the matter complained about?

Did anyone authorise the conduct complained of?

How do we measure that conduct? What are the relevant bench marks - procedures, law or policies?

Is the action consistent with the law, the policy and the authorisation?

Has the officer committed a breach of the law or of the discipline code?

The answers to these questions may be complex enough even when considered in relation to non-terrorist matters. They are complicated by the terrorist situation. In that context we must deal with all police action including crime investigators and Special Branch.

In Northern Ireland investigation of crime is carried out by CID officers. They also have a responsibility to gather intelligence in relation to non-terrorist crime. This is a pattern repeated across the world. They have no direct involvement in anti-terrorist intelligence gathering and where such intelligence does come to their attention they must hand it over immediately to Special Branch who are responsible for such intelligence. I wish to state unequivocally at this point that we need to have a unit dedicated to gathering intelligence, and that police officers, including Special Branch officers, have done a very courageous job in preventing terrorist atrocities. What is also required is the establishment of clear and unequivocal systems to translate intelligence gathered into evidence against terrorists when a terrorist crime has been committed.

There are many ways of gathering intelligence. I do not think I need to spell them out. They range from technical devices to informants. In Northern Ireland now we have legislation, the Regulation of Investigatory Powers Act, which regulates how informants are managed and provides for a system of consents to be obtained where technical devices are to be used to secure evidence. Evidence secured in accordance with the law is then admissible in court in the prosecution of alleged offenders.

The management of sources, particularly by Special Branch, is a complex business. Those who are capable of providing information which may enable the police to intercept a bomb, or to prevent a sectarian murder necessarily operate very close to those who bomb and shoot. They may be exposed by a successful police action which prevents an atrocity. The finger may be pointed by the terrorists at them. They may be perceived to be the conduit through which the police found out what was going on. If that happens they run the very real risk of being murdered themselves. There was a point when the discovery of a mutilated body on a lonely country road was a regular occurrence. Very often the allegation was that the person had been a “tout”. The management of sources therefore requires great care.

Sources can be and are authorised to take a minor part in a planned crime, although at a low level. At its simplest the source may be authorised to provide a car for an armed robbery, and the police can then arrange to intercept the car and prevent the robbery. There is a fine line between the legitimate authorisation of an individual to act as a participating informant in the commission of a crime, and a situation in which the informant is permitted to become involved in those crimes which can not be authorised under the law. That line is certainly crossed when the crime would not have occurred but for the involvement of the informant.

Our newspapers carry allegations that police were advised of the names of murderers, but that those people were not investigated because to do so would upset the intelligence gathering function. They suggest that people have been arrested, questioned and released in relation to a number of murders, where forensic evidence, which might have contributed to their prosecution, was not sought. There are allegations that Special Branch’s “running” of informants, included allowing those informants to access bomb-making equipment, to make bombs and to commit murder. I do not know whether the individual allegations which have been made are true. Such allegations, however, clearly contribute to loss of confidence in the police on all sides of the community. If true they may amount to the commission of criminal offences.

In order to deal with such allegations, and with allegations of police failure to act properly and lawfully in relation to informants, my office must be able to examine the systems which exist in relation to intelligence gathering and the utilisation and the management of sources. It needs, therefore, access to the heart of the most sensitive operations carried out by the police, when there is an investigation relating to those operations. We have such access. It carries with it enormous responsibilities in relation to the security of information and material. Special provision must be made in a body which has such responsibilities for maximum possible security. The possibility of an attack on anyone in possession of sensitive information can never be underestimated. The break-in at PSNI Special Branch Headquarters, Castlereagh, tells us that. Also the alleged level of gathering of information which might be of use to terrorists, at the heart of government in the Northern Ireland Office, must cause all those involved in the handling of sensitive information to be acutely aware of the responsibilities inherent in such a function. I am aware of my responsibilities in this context. The access which I have is vital to the exercise of my function and to the protection of the common good.

If no-one has such access, what can happen is that those in the Special Branch become separate from the rest of the police service. Special Branch in Northern Ireland was described by serving police officers to members of the Patten Commission, as a “force within a force”. It became effectively accountable only to the Chief Constable. This is not adequate accountability. There is also the risk that, operating as Special Branch does in a very secretive way, information is not shared with those who need the information to investigate crime. Proper systems of accountability must be able to identify the existence of such a situation, draw attention to it and ensure that action is taken to bring the Special Branch officers concerned back within the accountable policing structure.

What we have found is that the relationship between Special Branch and the rest of the Police Service in Northern Ireland evolved in an unbalanced and, to say the least, inappropriate way. There is a deficiency in current Special Branch arrangements for the management and dissemination of information. There were no detailed written force policies for the management and dissemination of information and intelligence from Special Branch to the rest of the force. There was very little proper analysis of such intelligence as was available. The consequence of this was that investigators of crime, both terrorist and non-terrorist, were often not informed of the existence of intelligence which might be relevant to their investigations. Those investigations would in many cases have been enhanced and facilitated by the provision to the Senior Investigating Officer of available and relevant intelligence. It may have had the potential to be translated from intelligence into evidence, through the evidential opportunities which it would have provided, which could then be used against terrorists. This was a foreseeable consequence of the arrangements which existed in Special Branch. It caused great frustration among officers investigating crime. Special Branch undoubtedly had a supremacy which was not in the interests of the common good. An operation like this is neither efficient nor effective.

I am not the first person to make these observations. Sir John Stevens in 1991 and the Patten Commission in 1997 made similar comment. My independence and my statutory authority have enabled me to do things which were not possible previously. Some previous reports were not made public. Access, such as I have by virtue of my powers, was often not made available to those conducting investigations in the past.

Change is now very much in the wind. Following my Omagh Report the Northern Ireland Policing Board appointed Mr Dan Crompton, former Chief Constable and Her Majesty’s Inspector of Constabulary to carry out a review of the role and function of Special Branch. Mr Crompton will report to the Policing Board on 06 November, next Wednesday. We await his findings with great interest.

The issues which I have attempted to articulate in this short paper are but a few of those which have come to my attention in my role as Police Ombudsman. The work which we do in my Office is critical to police effectiveness and to public confidence in the police. Fundamental to any success which we may have had is our independence. We are and must be evidence driven.

It is important to say to you that there is no inherent contradiction between effective policing, even in the context of ongoing terrorism, and effective independent investigation of complaints against the police. The outcome of rigorous independent professional investigation can only contribute to an enhanced policing service and to enhanced confidence in the police. The existence of independent scrutiny in Northern Ireland has not caused any difficulty to those responsible for investigating terrorist acts. It has concentrated minds and led to better investigative procedures. The fight against terrorism should never be used as a reason to deny independent investigation of police complaints.

My Omagh Report and some of the policy findings and recommendations contained in my Annual Report, all of which were transmitted in advance to the PSNI, have undoubtedly been the cause of some tension. However my independence has permitted me to say what had to be said as a consequence of the evidence which we uncovered. I am accountable to the courts, to the public accounts mechanism for my spending, and to Parliament for the exercise of my powers. My office has been the subject of huge media and political interest. Let no-one underestimate the effectiveness of that additional scrutiny. What is vitally important to me as I, and my staff, do this difficult and dangerous job, is that neither my powers nor my independence is compromised in any way and that my accountability to the law and the legislature remains undiminished.

Nuala O’Loan

01 November 2002