Police Ombudsman for Northern Ireland: Legacy Cases

Emma Little Pengelly Excerpts

Tuesday 26th March 2019 Westminster Hall

[Sir Jeffrey M. Donaldson]

My hon. Friend makes a broad point that is of concern to many of us regarding how the legacy process is addressing the totality of what happened in Northern Ireland during those tragic 30 years and more. The Osman test, which is often used in such cases, is very clear about what matters need to be considered when coming to conclusions about article 2—about the failure of the state to uphold the right to life. I do not believe that a conclusion reached on the balance of probabilities meets the threshold set out in the Osman test, and consequently I believe that the decision of the ombudsman is wrong.

[Emma Little Pengelly (Belfast South) (DUP)]

I know that my right hon. Friend has met with many of the families —as I have—including those who have been going through and are on the list to go through investigations by the ombudsman and the coroner’s court.

Due to the stalling of the Historical Enquiries Team process—the investigations into criminal offences by the police—and because many families are not happy with the result of that HET process, and because there is no funding for those criminal investigations, many genuine families who recognise that the perpetrator was the terrorist organisation do not have any options for an investigation or further investigation other than what is available, which tends to be either an ombudsman’s investigation or an inquest through the coroner’s court.

That means that we are ending up in a situation with a disproportionate push between those two aspects, where allegations of collusion are the grounds to try to get that re-investigation. That is not doing anybody any justice, not least by letting those who actually perpetrated the crimes get away with their criminal acts.

[Sir Jeffrey M. Donaldson]

I will add nothing to what my hon. Friend has said, because she said it very eloquently and summarises the concern for us. I know the Minister will talk about the proposals to bring a more balanced, fair and proportionate system for dealing with the legacy of our troubled past. I am dealing with one aspect of that today.

To be clear, my concern is that, even though the police ombudsman has the power to arrest, detain, interview and search properties, in this report on the “Good Neighbour” bombing not a single police officer has been recommended for discipline or criminal prosecution, and no claim of wrongdoing has been brought against any police officers, yet the conclusion remains that the police failed in their duty to protect the life of Mr Dalton. I think that is unfair, unreasonable and irrational, and it is an example of the ombudsman exceeding his remit and powers, despite the fact that he has many powers available to him, to go after the evidence and bring forward that evidence. The evidence is not there to support the conclusion. Therefore, with all the powers available to him, to conclude, on the balance of probabilities, in his opinion—not on an opinion based on evidence—that the police breached their article 2 obligations, shows that there is something seriously wrong when this is the outcome in such a case.

This case is not alone—I could give other examples. The main example I wanted to bring today, apart from this case, was Loughinisland. In light of your concern, Mr Owen, I will not pursue the matter further, but I encourage hon. Members to read some of the commentary and findings in court in relation to the report by the police ombudsman on the Loughinisland case. I think they will find that those conclusions support the contentions I am making today about the ombudsman and how he approaches investigations of this nature.

I am also concerned about the manner in which the police ombudsman’s office treats those who have served our country in the police—retired police officers who stood on the frontline in Northern Ireland. The Royal Ulster Constabulary lost over 300 officers and countless hundreds more were seriously injured in the conduct of their duty. They held the line and protected the entire community in Northern Ireland, yet at times one is left wondering whether there is an understanding of the contribution that the police in Northern Ireland made towards bringing peace. We would not have the peace that we enjoy today in Northern Ireland if it had not been for the courage and bravery of the Royal Ulster Constabulary. Her Majesty the Queen recognised that with the award of the George Cross to that fine police service. In her citation, she spoke of the courage and outstanding bravery of the RUC.

When it comes to the ombudsman and how it deals with those retired police officers, the Salmon principles are very important. The Salmon principles were introduced some years ago, after the inquiry into the Profumo affair. They were designed to protect participants in such public tribunals of inquiry. The police ombudsman for Northern Ireland ought to be complying with the Salmon principles.

There are six Salmon principles—they were devised by Lord Justice Salmon—of fair procedure under the Tribunals of Inquiry (Evidence) Act 1921. Those principles require that any person who is the subject of an inquiry

“must be satisfied that there are circumstances which affect them and which the tribunal proposes to investigate.”

I guess that the ombudsman would argue that it complies, but I am concerned the ombudsman is not complying fully with other elements. For example, a retired officer who is the subject of an investigation should be given an adequate opportunity to prepare their case, and of being assessed by legal advisers, and their legal expenses should normally be met out of public funds. They should be informed of any allegations made against them and the substance of the evidence in support of those allegations. They should be able to call material witnesses. They should have the opportunity of testing by cross-examination conducted by their own solicitor any evidence which may affect them.

Retired police officers who are the subject of investigations by the police ombudsman’s office are not afforded the opportunity of doing that. Indeed, often they are not even interviewed by the police ombudsman, yet they read a report concerning an investigation in which they were involved when they served, which criticises their conduct, and they have not even been afforded the opportunity to present their side of the story and put their point of view across to the ombudsman. That is simply unfair, and it is not compliant with the Salmon principles. It needs to be given closer examination.

Another major deficit in relation to the police ombudsman and how it operates is that there is no independent complaints procedure, whereby someone who is the subject of an investigation by the ombudsman may make a complaint about the manner of that investigation. Again, it is highly unfair that there is no recourse to complaint. People must either complain to the ombudsman himself or, I guess, raise the matter with the Secretary of State, but that does not constitute a proper independent process for dealing with a complaint. I believe that that is in breach of article 13 of the European convention on human rights, which the ombudsman seems to be quite keen on.

I do not believe that what the ombudsman, as currently constituted, offers is compliant with article 13, which requires an independent complaints mechanism for those who are the subject of investigations by the ombudsman’s office. The Northern Ireland Retired Police Officers Association has pressed the Secretary of State and others to make provision for such an independent complaints procedure, and it has not been done. That is most unfair —there is no recourse for people who feel they have been treated unjustly by the police ombudsman, which is a public body.

The schedule of bodies that are required to be subject to independent scrutiny and investigation of complaints made against them excludes the ombudsman, despite the fact that the offices of other ombudsmen are subject to independent complaints processes. That is another area where there is a deficiency in the manner in which the police ombudsman’s office operates. There ought to be an independent complaints procedure, so that those who are subjected to investigations by the ombudsman have the right to make a complaint if they feel they have been treated unfairly, and so that that complaint is properly examined and investigated.

For some time, my hon. Friends and I have been raising concerns about the operation of the police ombudsman’s office and about its reports’ findings, which are often the subject of banner headlines. Behind those headlines, however, there is little or no evidence to support the conclusions that have been reached. That is simply untenable, because, as some of my hon. Friends have said, it lends itself to the efforts of others who are seeking to denigrate the forces of the state, to paint them as the bad guys in the troubles, and to somehow justify the actions of those whose actions are completely unjustifiable.

We welcome the Government’s proposals to remove the role of investigating legacy complaint cases from the Police Ombudsman for Northern Ireland and to transfer that role to a new independent investigative body. In supporting that, I say to the Minister that, when the legislation is being drawn up, and when the terms of reference and the remit for the new investigative body are being set, we need to address those concerns. We need to ensure that the manner in which the police ombudsman’s office has acted in dealing with legacy cases is not repeated in the future; that there is fairness; that there is a balanced and proportionate approach; that people are afforded the opportunity, if they feel aggrieved, to pursue a complaint against the ombudsman, or in this case, the new investigative body, to an independent body; and that the investigative body complies with the requirements of the Salmon principles in relation to the rights of those who are the subject of an inquiry.

I say to the Minister that it is important to right those wrongs. It is important that police officers, or retired police officers, who are the subject of investigations, are treated fairly and properly, and that the investigative body is restricted in its remit to what ought to have been the remit of the police ombudsman’s office, which is to send its findings to the Chief Constable if there is evidence of disciplinary malpractice, or to the Director of Public Prosecutions if there is evidence of criminal wrongdoing. That is what the police ombudsman is required to do.

The police ombudsman should not make statements that imply guilt and wrongdoing when the evidence is not there to support them, and when he is not bringing any charges against any police officers in those cases on matters of discipline or of criminal wrongdoing. That is unfair. The system is unjust and needs to change. I hope that in the new independent investigative body that will be established, those steps and wrongdoings will not be revisited on retired police officers. It is simply wrong.

--- Later in debate ---

[Jim Shannon]

Along with my hon. Friend and others, I would be concerned if any landmark reports that are available to the general public, or in the public domain, should in any way throw any slight on the determination of police. I believe that would exceed the ombudsman’s statutory powers.

[Emma Little Pengelly]

Very often whenever these issues are reported, there is some suggestion that in some way those who have done wrong should get away with it because they are in a particular category. May I put on the record—I am sure that my hon. Friend agrees with this—and echo the words of my right hon. Friend the Member for Lagan Valley (Sir Jeffrey M. Donaldson) that any murder was wrong, and that any criminal act, by terrorists or others, or wrongful murder, must be condemned and fully investigated? We absolutely agree with our right hon. Friend on that.

However, there must also be fairness within that system and the concerns that are being articulated are very much about the lack of consistency, and the apparent absence of guidelines in terms of the adjudication and reporting of these cases. That is leading to inequality and to concern for many.

[Jim Shannon]

With my hon. Friend’s legal mind, she obviously succinctly focuses on the issues that we need to be aware of.

I believe that police officers involved in any case, wherever that may be, and who have not been afforded the protection of due process, should not be subjected to destructive and withering condemnations by any person who has a position of power. I believe that the ombudsman’s office has lost credibility and respectability, not simply among those who designate themselves as Unionists but among all who are right-thinking.

When I was sitting here and listening to my right hon. Friend the Member for Lagan Valley, I thought the release of a report that gave no right of reply, and that was ambiguous and condemning of officers at any time, was an indication of the intent of the ombudsman, as we sit by and see more and more focus on alleged state collusion. The allegations are made willy-nilly and without proof or evidence.

I can think of many atrocities during my lifetime. My right hon. Friend referred to atrocities, but not specifically. I can remember them from when I was a young man to the age that I am now. I think of Bloody Friday, when the IRA murdered innocent men, women and children across the whole of Belfast. In the Abercorn restaurant, where I used to eat as a young man, people were murdered while they were there having a meal—children and women butchered and destroyed.

There was the La Mon Hotel in my constituency, where again those who were in high positions of IRA leadership and who are now in positions of political leadership seem to have got away with what they have done. There are also the murders at Kingsmill. We all know the story about Kingsmill and the massacre there, and we know that there have been clear allegations of collusion by some members of the Garda Síochána in relation to that massacre—that is well-known. When we look to an ombudsman to investigate issues, those are the sorts of issues that they should investigate.

There was the Darkley massacre of men and women who were worshipping their God in their church. In my own family, there was the murder of my cousin, Kenneth Smyth, outside of Clady. Lexie Cummings was murdered outside Strabane. Four Ulster Defence Regiment men, three of whom I knew personally, were murdered in Ballydugan: John Birch; Steven Smart; Michael Adams; and Lance Corporal John Bradley. They were four young men who were murdered in the prime of their life.