Robert Whalley: “The police know that the numbers of residual terrorists are growing…”

The Northern Ireland Secretary of State, Owen Paterson, has published the third annual report by the independent reviewer [pdf file], Robert Whalley, of the Justice and Security (Northern Ireland) Act 2007.  The report covers the period 1 August 2009 to 31 July 2010.

The second annual report was noted here.

As the NI Secretary of State says

The report highlights the security situation in the past year and the activities of residual terrorist groups who have been dangerous and disruptive and remain heavily involved in organised crime. The Reviewer states that the police have had to deal with more threats and attacks this year, and this has led to a substantial increase (22%) in the use of stop and question and stop and search across the range of police powers. He also makes note of the heavy demand for the services of Ammunition Technical Officers (ATOs). [added emphasis]

From the independent reviewer’s third report [pdf file]

Police operational activity

Nature and extent of residual terrorist activity

113. The police have reported to me on the nature and extent of the residual terrorist activity assessed as “national security” attacks which they have dealt with this year. The number of such attacks in 2010 (up to the end of November) was 39. This compares with 22 in the whole of 2009 and 15 in 2008. A national security attack is one which, in the assessment of the Security Service, is designed to undermine the ability of the devolved administration, the judiciary and the security forces to maintain law and order and effective government in Northern Ireland. It does not include “civil administration” attacks, and other attacks which are sectarian in nature, whose effects damage communities and individuals.

114. These 39 attacks include six vehicle-borne improvised explosive devices (VBIED) on police stations, two improvised mortar attacks and six pipe bomb attacks on police stations, three shooting attacks on police stations, 11 VBIED and under-vehicle and shooting attacks on police officers and their close associates and an army officer, three pipe bomb attacks (one of which caused shock to three children), two command wire improvised explosive devices (CWIED) at Keady and Belleeks and several other incidents including VBIED attacks on Newry Court House, the offices of the Policing Board and Palace Barracks, Holywood. In addition there have been coffee jar bomb attacks and blast and petrol bombs thrown at police during disturbances. Additionally there have been hoax devices, notably on the “day of disruption” on 19 March in Belfast and Londonderry.

And the report’s conclusions

Part 7: Conclusions

Preliminary

267. These conclusions relate to the third full year of the operation of the Justice and Security Act, from 1 August 2009 to 31 July 2010. As before, they are based solely on the review activity described in the text above.

The security profile

268. There is a clear consistency of view that the security profile in the past year has been very serious. I reach that conclusion on the basis of periodic meetings with senior staff in the police, the Security Service and the military authorities, as well as contact with operational commanders and their staff at all ranks. It also reflects my discussions with the political parties, interested groups and community contacts.

269. The assessment of the serious nature of the threat is also supported by a range of other commentators, whose views I have recorded above. These include the Secretary of State, the Minister of Justice, the Independent Monitoring Commission, Lord Carlile and the Chief Constable.

270. The seriousness of the threat can be judged in the separate but closely related areas of terrorism, public order and serious crime. This year the linkages between the three have grown more complex. To reach my conclusions I have had the benefit of formal presentations from the operational services and have examined case studies, statistics and operational reports.

271. So far as terrorism is concerned, the activities of the residual terrorist groups have been dangerous and disruptive. They have shown greater coherence in their attempts to kill police officers and security personnel, shoot at and bomb police stations and public buildings and disrupt the general public. Their reckless disregard of and contempt for the safety of the general public, especially children, is horrendous.  They have little or no political or community support and their claim to act in the name of a long-standing political cause has been totally and universally condemned both north and south of the border.

272. For public order, the violence in the Ardoyne on 12 July and succeeding nights had a serious impact on a long-suffering local community and caused injuries to over 80 police officers. Its more sinister significance is the clear indication of the involvement of residual terrorist groups from outside the immediate area, as a further demonstration both of their capabilities and of their contempt for the safety of the public. The use of firearms against the police in the Ardoyne and in other incidents has required a clear tactical response from the police.

273. For serious crime, the Organised Crime Task Force report an increase in activity attributable to residual terrorist groups who, they say, remain heavily involved in organised crime, involving firearms in some cases. There also remains some involvement in organised crime by some members of the UDA.

Operation of the powers

274. The police have had to deal with more threats and attacks this year. In terms of bomb threats they have had to call upon the military authorities since they have no capacity of their own to deal with them.  They face opponents who have demonstrated increased capacity and scope in their planning and greater ability to mount lethal attacks involving firearms and explosives. These have ranged across Northern Ireland and have not been confined to particular areas. The police response has required a commensurate geographic range and recourse to all the powers available to them.

275. This has led to a substantial increase (22%) in the use of stop and question and stop and search across the range of police powers – the Police and Criminal Evidence Order (PACE), the Terrorism Act and the Justice and Security Act.

276. Precise conclusions may be misleading, particularly where numbers may have risen from a small base figure and where the overall statistics may incorporate surges of activity in response to specific threats or attacks. The increase in the use of the PACE powers has been less than for the others. The Terrorism Act has been used more than the Justice and Security Act, but the proportion of activity under the latter has increased.

277. Some will find these statistics a welcome reassurance that the police are responding effectively to the challenges posed by the residual terrorist threat. Others will find them alarming confirmation of all their worst fears about an increase in the use of intrusive powers, out of all proportion to need.

278. In this complex and sensitive situation it remains of paramount importance that stop and question and stop and search operations are carried out only when absolutely necessary and in full recognition of their potential to alienate individual members of the public and groups whose support for the police is essential if normal policing is to develop. Wherever possible, less intrusive strategies should be used.  But where these powers are necessary, they should be used.

279. My own judgment is that the overall increased use of these powers is justified in response to the scale of the challenge from the residual terrorist groups, and in particular the risk to life from firearms and explosives (whether judged according to obligations under Article 2 of the European Convention on Human Rights or against more pragmatic criteria).

280. I make that judgment against the clear assumption that every stop and search or stop and question must be capable of justification on its merits. These must relate both to the context of the security threat, which in Northern Ireland is not in doubt, and to the individual circumstances, for example in relation to movements of individuals, vehicles, weapons and explosives.

281. This year I have followed on the work of the first two years to examine whether the records of the use of Justice and Security Act which are mandatory are being kept fully and accurately. This is absolutely crucial if the police are to be able to demonstrate the justification for the use of the power in every individual case. Since the person stopped is entitled to a copy of the record there is an obvious risk of misunderstanding or resentment if the reasoning is not clear.

282. From my limited sampling of the records, I conclude that there is still some way to go in pursuit of best practice, but internal police briefing notes show that these issues are recognised. Instructions to police officers are clear and unequivocal and the training which I have observed is equally thorough. The increased use of these powers and the higher profile they have inevitably assumed in public consciousness reinforce the point. The need to follow operational orders accurately in every case must continue to be given high priority in police training and operations and in supervision by senior officers.  The development of electronic recording which the police are pursuing is an excellent step.

283. The use of powers to close roads is fully justified against the risk to life but they will inevitably cause disruption to the public and may give rise to frustration. Since I can envisage a greater use of these powers if the threat continues it would be advisable for consultation procedures to be reviewed to make sure both that the reasons for a closure are fully understood and that any possible mitigation measures are adequately explored.

The role of the armed forces

284. The transition to a normalised security profile, in which the armed forces act in a limited role in support of the police, was effectively completed in 2007. It is encouraging that everyone I have spoken to this year now takes that position for granted.

285. There is no doubt however that there has been a heavy demand for the services of Ammunition Technical Officers (ATOs) who perform life and death operations to defuse bombs. They were called out on 460 occasions this year, compared with 458 the previous year, in circumstances of immediate danger to life. The police have no resources to do this.

286. The speed of the ATOs’ response cannot be faulted, but it is crucial in resolving an actual or potential threat, reducing disruption to the public and restoring normality. It thus has a direct impact on community confidence in the overall response to the threat, including the police response. For that reason the speed and coverage of the ATOs’ response will continue to need careful monitoring, particularly at a time when United Kingdom defence requirements over the longer term are being assessed and the balance between commitments at home and abroad is under scrutiny.

287. The powers in the Justice and Security Act which involve the armed forces in dealing with devices and hoaxes have therefore continued to be actively required. Other powers, in relation to arrest and public order, have not been used. They are dormant but are not yet redundant.

Public Order

288. I have described above the police response to the serious disorder this year. Challenging though this has been, the police dealt with it according to carefully planned and executed strategies designed to maintain calm and avoid the creation of situations which could have given rise to injury or be exploited by malign influences. They have done this effectively. The problems they face are like no others in the United Kingdom and the tactical decisions they have to make are unique.

289. Although these matters are for others to decide, I see no need to change the basis of planning for next year or the disposition of assets and resources, subject to ensuring that vehicles which are used in demanding tactical situations are fit for purpose.

290. The armed forces can continue to be regarded as a background option and any reinforcements which PSNI require can be found from police assets from forces in Great Britain, drawing on standard mutual aid arrangements. The option of planning and training for such dispositions is a welcome assurance to the public in Northern Ireland.  And PSNI have much to teach police forces in Great Britain about handling difficult public order situations.

Military complaints

291. There were 56 complaints this year, compared with 124 the previous year, a fall of 55%. Of these 52 (93% of the total) were treated as formal complaints, the same proportion as last year. All 56 complaints relate to military flying (all but three helicopter flying). I have read through all the files relating to formal complaints and examined how the informal complaints have been resolved.

292. The target period of 15 days for responding to a formal complaint was met in 49 of the 52 cases to which it applied. The remaining cases acquired a complexity which meant it was not possible to keep to the 15 day rule. This was not due to inaction on the part of the investigation staff.

293. The handling of complaints cases this year has been effective. It follows that I have not felt it necessary this year to invoke my power to require the Brigade Commander to review a particular case or class of cases.

294. The departure of the Pumas of 230 Squadron RAF has removed the major source of complaint from previous years. Under the Flying Station Aldergrove, helicopter and fast jet flying and training will continue. The expectation is that this will be less intrusive than the noise caused by the Pumas. But the Station will need to maintain the capacity to respond readily to complaints and give accurate information, so that the current clear and timely response to complaints can be maintained.

295. The changing pattern of activity following the departure of the Pumas has triggered a reappraisal of communications strategies to explain the pattern of military flying to the public in Northern Ireland. I welcome this initiative. Evaluating its impact should form part of the task of the Independent Reviewer next year.

The future of these powers

296. In [his] letter of appointment, the Secretary of State said:

“The Reviewer may make recommendations to be considered by the Secretary of State on whether to repeal powers in the Act”.

297. In my judgment, this issue needs to be addressed each year. There is a danger that genuine concern and caution might foster an assumption that the powers can be carried over to the following year without rigorous examination. It has to be constantly remembered that they are exceptional powers whose rationale should be appraised afresh each year. They arouse a range of reactions from the enthusiastic to the hostile among the community in Northern Ireland.

Operational need and advice.

298. My approach has been to examine whether there is likely to be an operational need for them, based on evidence from the past year, assessment of the likely security profile, and advice from the police.

299. All three indicators leave me in no doubt as to the continued requirement. Last year was very bad in security terms. This year the prospects at present seem no better. The threat level remains at “severe”. Both the PSNI and ACPO have told me that they think the powers remain necessary.

300. Some of the powers provided for the armed forces are effectively dormant if not yet redundant. There is the option of removing them piecemeal, leaving only those for which there is a demonstrable need. That is a judgment for others to make, not for me, but reflection on the current security profile does not suggest that now is the time to do this.

Other views

301. My discussions with political parties and other groups have naturally covered questions about the future. When I have asked people about this they have responded openly and frankly.

302. In some quarters the heightened security threat makes it unthinkable to envisage any change at present, nor could they envisage removing even those powers which are little used by the police or the armed forces. Nothing should be done, in their view, to reduce the capacity of the police to counter the residual terrorist threat as effectively as possible or to weaken public confidence in the police’s ability to do so. The fragility of the current security position makes such a conclusion inevitable, they believe, and it would be as well to recognise that and plan accordingly.

303. Others continue to see the powers as a major stumbling block on the path to normalisation, which they believe will become even more significant in a post- devolution environment. They believe that their impact is felt disproportionately in nationalist areas and that the continuance of intrusive police and military powers serves merely to recruit support for residual terrorist groups and perpetuate an image which is at stark variance with what is now urgently needed to maintain community confidence. Their objections in principle to these powers remain.

304. My conclusion from the operational indicators is that no change should be made to these powers for the current year. The balance of other views is not so clear cut. Objections of principle will remain, however conspicuously carefully the police operate these powers. To allow scope for these objections to be met, the police should continue to use the powers only where there is no alternative and subject to demonstrable need in every case.

305. Rigorous oversight from senior levels, careful monitoring and record keeping, and a training programme which focuses on all the sensitivities set out in this report will continue to be essential. But where it is necessary to use these powers, they should be used.