CJINI report: “Independence is not an absolute.”

Alan’s put up a general post on the CJINI report on the NI Police Ombudsman’s independence – although the BBC headline may be premature, unless someone else is briefing them…  Full report available here.

We already knew of problems within senior management at the Ombudsman’s Office.  And the CJINI key recommendation – “that the investigation into historical cases should be suspended until the Strategic Plan for the Historical Investigations Directorate has been adequately resourced and becomes fully operational” – will be welcome news to Al Hutchinson.  He has said all along that the  Ombudsman’s office and the HET are blunt instruments too narrowly focused to solve society’s problems”.  Whether the Strategic Plan for the Historical Investigations Directorate ever does be “adequately resourced and becomes fully operational” remains to be seen.  Al Hutchinson’s response to the report is here.

Before reading too much into the CJINI conclusion that there had been “a lowering of the operational independence of the OPONI”, it’s important to note that the conclusion includes an assessment of the “perception of ‘independence'”.

In the context of Northern Ireland in order to ensure public confidence, the perception of ‘independence’ in the work of the Office of the Police Ombudsman is as important as actual independence. The police need to believe that complaints against them will be treated fairly and impartially while the community require confidence that the accountability mechanisms are robust to deal with concerns over policing.

Part of that perception is informed by “the flawed nature of the investigation process used in historical cases.”  In particular, as the CJINI press release notes

…that reports had been heavily influenced and buffeted by feedback from non-governmental organisations, families, their legal representatives and the PSNI.

That would include “non-governmental organisations” like the Committee on the Administration of Justice.

But the key issue identified in the CJINI report is “the handling and use of sensitive material”.  The role of the “Confidential Unit” is central to that issue.

Confidential Unit

3.26 This case along with several other unfinished cases examined by Inspectors emphasise the critical role of the Confidential Unit. This Unit comprises an intelligence manager, two analysts and two intelligence officers.

3.27 The review of the intelligence function was described in Chapter 2. The impact of the implementation of parts of that review is in the day-to-day operation of the Confidential Unit. The outline process map of how historical cases are investigated and reported on illustrates the input the Confidential Unit has to each investigation. The Confidential Unit does not believe that they have much influence over the progression of cases and further believe that the Unit is not listened to by senior management.

However, the evidence from the cases reviewed by Inspectors is that the importance of the Unit is underestimated by its members.

3.28 A formal system for dealing with sensitive information is in operation that is in line with accepted and recognised practice within policing. This requires investigators to apply for any sensitive information that they may require during their investigations. Applications are processed by the Confidential Unit who may amend the terms of the applications so that they are more easily understood by the receiving party – in most cases the PSNI. Once an application is made by the Confidential Unit to the information holder, the Confidential Unit deals with any responses and depending on the information, either receives it at the OPONI or is required to visit the PSNI or other holder to view it on their premises. The Confidential Unit member then prepares a report based on the viewing of material and the investigator’s request. The report is forwarded to the investigator as a disseminated intelligence report (DIR).

3.29 If the SIO in the case wishes to view the sensitive material that the Confidential Unit used to prepare the DIR they must apply to the Senior Director of Investigations who is the final arbiter in these matters. The interpretation of the protocol dealing with the viewing of material by senior investigators had caused problems between the investigative side and the Confidential Unit. The interpretation of the Unit was that senior investigators could only view material when accompanied by a member of the Unit. The protocol does not make it clear that a senior investigator must always be accompanied when viewing sensitive material on PSNI premises. However, during one investigation in January 2009, a senior investigator was asked to leave PSNI premises because they were not accompanied by a member of the OPONI Confidential Unit. This caused embarrassment to the senior investigator and in his view, demeaned the role of the OPONI in the eyes of the PSNI.

3.30 Inspectors viewed requests and DIRs in many of the historic cases examined by them. Inspectors also interviewed some current and former senior investigators and investigators regarding the provision of intelligence material to support investigations. Members of the Confidential Unit provide analysis and assessment based on their viewing of the material provided by the information holder. Members of the Confidential Unit believe that they view all the information that is available to the requester. However, some investigators and senior investigators believe that not all material is made available and the process of obtaining material is unnecessarily bureaucratic. This belief is not unusual when compared with the corresponding situation within police services when investigators are required to conform to protocol for requesting sensitive information whilst investigating serious criminal matters.

3.31 Some senior investigators believe that to obtain material through application to the Confidential Unit requires persistence and continual explanation that less experienced investigators lack. Inspectors viewed requests for material that had been passed back and forth between investigators and the Confidential Unit that would support the view that persistence and repeated clarification of requests is required to obtain material. The material viewed would also indicate that the Confidential Unit sought to clarify the investigators’ requests for information to facilitate the information gathering process. There is a lack of confidence amongst some investigators in the quality of the disseminated report provided by the Confidential Unit. This arises from their perception that not all material has been made available to the members of the Unit and a questioning of the analysis of material on occasions when SIOs view the sensitive material for themselves. We would expect these issues to be considered in any review of the role of the Confidential Unit.

That “lack of confidence” permeates to senior management level.

4.9 The critical elements causing dysfunction of the Critical Review Panel are mistrust and lack of confidence over the provision and interpretation of sensitive material. Inspectors would expect to see a review panel sitting at this stage of the process deliberating on the quality aspects of reports brought to them. At present some Critical Review Panel members do not believe that SIOs have had access to all relevant sensitive material to inform the investigation. In addition some SIOs are not confident that they have had access to all such material. Some senior members of staff sitting on the Critical Review Panel stated that they could not discharge their functions with regard to providing a quality review of material brought to the panel without being able to question in depth, the use of sensitive material used to inform the investigative process.

4.10 Panel members bring their own experiences of Northern Ireland to the table and use these to provide the Police Ombudsman with assurances regarding the finished product. That is the main aim of the review process. However, some members lack confidence that all sensitive material has been provided and appropriately analysed and assessed to enable a full and thorough investigation to take place. Some SIOs are not confident that they have obtained all relevant sensitive material on which they can make an assessment and appropriately direct the investigative process. When issues regarding sensitive material are raised during the Critical Review Panel meetings, details have been withheld from members because of security and vetting concerns. [added emphasis]

4.11 This situation reflects the structures and processes implemented by the OPONI following the review of the intelligence function in 2008 but without the appropriate level of trust and confidence that is required. This situation is a result of the incomplete implementation of the recommendations of the 2008 intelligence review. Allowing this situation to continue has further widened the split between the investigative side of the organisation and the corporate and support side and has caused deep mistrust.

Chapter 2 of the CJINI report addresses that “incomplete implementation”.

2.7 There is a comprehensive range of protocols and memoranda of understanding (MoU) in place between the OPONI and relevant stakeholders including the PSNI. These help to support the independence of the OPONI at an operational level by providing a framework for a professional working relationship between the organisations. The protocol and MoU cover issues such as;

• Post Incident Management (PIM);

• duty of care and deployment of PSNI PIM;

• suspension/repositioning of police officers;

• Security Operating Procedures for OPONI users of the PoliceNet system;

• agreement for sharing of personal information;

• medical services;

• investigation of accidents involving police vehicles;

• requests for information from the OPONI;

• Ombudsman interview of police officers;

• access to information from RUC Human Resources;

• access to information held on the RUC information system;

• liaison with the Police Ombudsman;and

• report sharing for factual accuracy.

2.8 However, a protocol with the PSNI regarding the handling of sensitive information had not been updated since 2005 and at the time of this inspection, a new draft protocol was in the process of being developed and agreed. Other protocol regarding the naming of police officers in reports by the OPONI had been agreed and signed off by all relevant stakeholders. A joint MoU between the PSNI, the OPONI and the Security Service to cover requests for disclosure of information was in place and case reviews carried out by Inspectors, together with feedback from SIOs suggest that it is being implemented effectively and supports a professional working relationship. It specifies a framework for requesting information, for security measures to be adopted to comply with legislative requirements and provides for nominated points of contact in each organisation.

2.9 The revision of the protocol with the PSNI for dealing with sensitive information has been informed by a report into the restructuring of the handling of sensitive material. This comprehensive external review of the intelligence function was carried out in 2008. The review was conducted by four senior members of English police forces with strong and respected backgrounds in managing the handling of intelligence and sensitive information. The review was commissioned because of a number of concerns by the PSNI and OPONI staff around the ways in which intelligence material was handled by the OPONI.

2.10 This review identified several major areas of concern with regard to structures, processes, policy, strategy and people. It made 17 recommendations for change to ensure that sensitive material was handled and managed appropriately. It is understandable that the security of sensitive information should be taken seriously, however, it is also important that issues around transparency and accessibility should be included as part of civilian oversight arrangements. The review included interviews with senior members of the OPONI staff but civilian oversight was not represented on the review team. Inspectors found that there had been no significant consideration of the needs of a civilian oversight body as opposed to the needs of the police or Security Service.

2.11 The reporting team consisted entirely of serving police officers from England and Wales. Whilst the recommendations were designed to address the needs of the PSNI and Security Service by providing assurance about the handling of information by the OPONI, it is not clear that all of the civilian oversight needs of the OPONI, with regard to sensitive material were represented. [added emphasis]

2.12 The OPONI has implemented some of the structural changes recommended by the review and has in place a ‘firewall’ system to ensure that sensitive material is handled in accordance with what is recognised by the police and Security Service as good practice in this area.

2.13 Sensitive material should be handled appropriately and lawfully and in a way that the organisations supplying the material can be assured that it is dealt with in a way which would not endanger people’s lives. There is an argument that full and timely provision of sensitive information from the PSNI and/or the Security Service to the OPONI may be improved by having better assurance mechanisms in place. Following the review the OPONI had advertised the post of Intelligence Manager; however no new appointment was made. Whilst some recommendations to improve the structures and processes for handling sensitive material had been implemented, many other recommendations regarding people, skills, strategy and relationships had not. These were critical recommendations of the review and were framed to be delivered in tandem with the structural and procedural changes. [added emphasis]

2.14 As a consequence of failing to implement all the review recommendations the day-to-day operation of the Confidential Unit within the OPONI is not as envisaged by the 2008 intelligence review report. Failing to embed the needs of the OPONI into the review by having civilian oversight representation on the review team damaged confidence in the operation of the Confidential Unit as recommendations were implemented. [added emphasis]

Not simply that the recommendations have not been fully implemented, but that those recommendations were possibly inadequate in the first place.

As Tony McCusker’s earlier report noted [pdf file]

48. On the wider front, the outcome of the CJI Investigation will have to be factored in and also that a further Statutory 5-year review is due next year. Bearing all this in mind it seems to me that within the next 6-12 months there is probably a need for DOJ to initiate a comprehensive review of the future functioning of the Office and in particular the appropriateness of the governance model currently used.

Pete Baker