“The ombudsman now plans to ask Justice Minister David Ford to introduce new legislation…”

John wanted a “public explanation”…  BBC NI home affairs correspondent, Vincent Kearney, reports that 49 historical cases where RUC officers were responsible for deaths, which were passed by the Historical Enquiries Team (HET) to the Police Ombudsman for Northern Ireland because European legislation prevents the HET from investigating, cannot be investigated by the ombudsman because domestic legislation prevents the office from acting.  From Vincent Kearney’s report

The Historical Enquiries Team cannot investigate them because European law states investigations into state killings must be fully independent.

As the HET is accountable to the chief constable, it cannot investigate killings by police officers.

As a result, the HET passed the files on 49 such cases to the office of the police ombudsman and as far it was concerned, the cases were being investigated by an independent body.

However, just as European law precludes the HET from investigating deaths caused by police offices, the ombudsman’s office says domestic legislation means it cannot conduct fresh investigations to determine whether any of the police officers involved in the 49 killings were guilty of a criminal offence.

That means that no matter whether years were spent investigating some killings, or perhaps just hours probing others, the police ombudsman’s office cannot launch any further investigation into what had happened.

“The legislation prohibits the office from re-investigating any matter which has previously been investigated by the police unless there is new evidence,” Olwen Laird, the acting chief executive in the office explained. [added emphasis]

“The result of that is that we appear to find ourselves in a position where the only matters now which will not be reviewed or reinvestigated are those deaths which occurred as a result of police action.”

A Supreme Court case earlier this year confirmed that the office could not re-investigate the cases.

According to Vincent Kearney’s report, “while concerns about the legal status of the cases were first raised inside the ombudsman’s office four years ago, it was only in recent months that it sought independent legal advice”.  Well, 2007 was a different country…

And the proposed solution?

The ombudsman now plans to ask Justice Minister David Ford to introduce new legislation to enable its investigators to examine the killings.

Hmm…

Adds  And as Al Hutchison said in April 2008

“In my final report as oversight commissioner I listed a number of challenges including policing the past or future. I said that both this office and the HET are blunt instruments too narrowly focused to solve society’s problems. After coming to office I’ve confirmed that is the right view but with an additional fact. Having talked to victims and families from across the board I know that they can’t be ignored and we need proper legislation to deal with that. Even if you could draw a line under the past I’m not sure you should because of the victims deserve the truth. And while getting answers can be cathartic to some there are also lessons [to] be learnt and which have been learnt.”

And then there’s the other matter…

Update  And according to the latest BBC report

Baroness O’Loan said she was aware of the legal issues during her time as ombudsman.

“If an allegation was more than 12 months old it could not be investigated unless there was no previous complaint or there was a previous complaint but there was new evidence, or the matters which were previously investigated were different from those which had to be investigated,” she explained.

She said families were told if a particular case would not be considered.

“If we couldn’t investigate we would explain why we couldn’t investigate,” she said.

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  • John Ó Néill

    11. The Police (Northern Ireland) Act 1998 requires the Police Ombudsman to:
    • exercise his powers in such manner and to such extent as appears to him to be best calculated to secure :
    a. the efficiency, effectiveness and independence of the police complaints system; and
    b. the confidence of the public and of members of the police force in that system;
    • observe all requirements as to confidentiality;
    • receive complaints and other referred matters and to decide how to deal with them;
    investigate complaints, referred matters and matters called in for investigation by the Police Ombudsman[my emphasis];
    • receive and record policy complaints and refer them to the Chief Constable;
    • make recommendations to the Director of Public Prosecutions for criminal prosecution;
    • make recommendations and directions in respect of disciplinary action against police officers;
    • notify the Secretary of State, Northern Ireland Policing Board (NIPB) and the Chief Constable of the outcome of certain complaints, referred matters and any investigation which the Police Ombudsman initiates without a complaint; and
    • report to the Secretary of State annually.
    [extracted from OPONI’s own management statement]

    The May judgement referred to the restrospective use of HRA 1998 and Article 2 of ECHR to determine the parameters of various legal processes. What that means is that you couldn’t challenge a legal process that occured pre-1998 on the grounds that it didn’t conform to what applied after the act was passed. In the case of the McCaughey/Grew inquest, it is not complete and so the Act applies.
    The Ombudsman is tasked under legislation to investigate complaints, referred matters and matters called in for investigation by the Police Ombudsman (as in bold above). He might need to publish the legal advice he has been given on how the May judgement somehow exempts the office from fulfilling it’s duties under the 1998 Act.

  • Pete Baker

    John

    “He might need to publish the legal advice he has been given…”

    Well, he might.

    But you missed emphasising the preceding line in the management statement – “receive complaints and other referred matters and to decide how to deal with them”.

    At least you’ve an answer to your question as to “why a referral by the HET isn’t, by implication, a signal that fresh evidence is available (otherwise, why would the HET refer it to OPONI).”

  • John Ó Néill

    “and to decide how to deal with them.”

    When they framed that, I’m not sure that sitting on cases for four years then lurching at the first passing driftwood was what they had in mind.

    At the same time, anyone in the north that legislates that someone must exercise his powers in such manner and to such extent as appears to him to be best calculated to secure … the confidence of the public must figure that that is going to be a poison chalice.

  • Pete Baker

    It’s not as if they didn’t have other things to be getting on with – given that they had concerns about their legal position on these particular cases. And political concerns may also have played a part in any delay in clarifying the situation.

    And I’m sceptical about the new “independent legal advice” as well.

    But there’s a difference between being sceptical and cynical.

    And as I said,

    At least you’ve an answer to your question as to “why a referral by the HET isn’t, by implication, a signal that fresh evidence is available (otherwise, why would the HET refer it to OPONI).”

  • John Ó Néill

    They only seem to have gone after legal advice in recent months (i.e. after four years). Which certainly won’t build confidence in at least one section of the community.

    By the way – for the sake of coherency, I’ll stick a note on the other thread and direct all comments onto here.

  • Pete Baker

    “They only seem to have gone after legal advice in recent months”

    When they had a Supreme Court judgement to assess the situation by?

    Just a thought…

  • John Ó Néill

    They must have a working improbability drive, then, since the May judgement followed on from a 2010 judgement (that wasn’t necessarily going to have any relevance). That only knocks a year off, really. Arguably OPONI simply hedged their bets on this (I guess the whole issue of Article 2 compliance is going to keep floating around until legislation resolves this).

  • Pete Baker

    “Arguably OPONI simply hedged their bets on this”

    To repeat myself,

    And political concerns may also have played a part in any delay in clarifying the situation.

    “until legislation resolves this”

    I wouldn’t, necessarily, hold your breath on that…

    And as I said,

    At least you’ve an answer to your question as to “why a referral by the HET isn’t, by implication, a signal that fresh evidence is available (otherwise, why would the HET refer it to OPONI).”

  • andnowwhat

    At first I was angry at Al but the I looked over the BBC report again and there were concerns on the matter 4 years ago

    “.But while concerns about the legal status of the cases were first raised inside the ombudsman’s office four years ago, it was only in recent months that it sought independent legal advice, and the families of most of those involved have not been informed.”

    http://www.bbc.co.uk/news/uk-northern-ireland-15876312

    Why didn’t anyone, especially SF given how many of their colleagues are involved, not act upon this?

  • I have to confess that I don’t fully understand the arguments. Does it all mean that, at present, nobody can legally investigate alleged wrongdoing by police officers?

  • Cynic2

    So if there is no new evidence whats the point of a new investigation?

    This is just another form of coat trailing and the Ombudsman’s office building a case for more funding

    * we don’t have the powers

    * thanks for the powers now we need the money and more staff, more senior staff, promotions ………

  • Reader

    JoeCanuck: I have to confess that I don’t fully understand the arguments. Does it all mean that, at present, nobody can legally investigate alleged wrongdoing by police officers?
    No – just that it can’t be investigated twice. The Ombudsman can investigate new cases, and the HET can create new cases from history for the Ombudsman (“Hey, no one has had a look at this yet”), but neither can dig up a case that has already been investigated.

  • Neil

    So if there is no new evidence whats the point of a new investigation?

    Because no one trusts the police to investigate the police.

  • Pete Baker

    Update And according to the latest BBC report

    Baroness O’Loan said she was aware of the legal issues during her time as ombudsman.

    “If an allegation was more than 12 months old it could not be investigated unless there was no previous complaint or there was a previous complaint but there was new evidence, or the matters which were previously investigated were different from those which had to be investigated,” she explained.

    She said families were told if a particular case would not be considered.

    “If we couldn’t investigate we would explain why we couldn’t investigate,” she said.

  • Cynic2

    “no one trusts the police to investigate the police”

    ….and noone trusts the Ombudsman to investigate the police

    …… and none will trust an Ombudsman for the Ombudsman to investigate the Omudsman

    ad absurdium until they get the resukt they want as opposed to the truth

  • andnowwhat

    Peter, I heard the Nuala O’ Loan has said that there may be individual cases within the 49 that could fill the criteria for an investigation.

  • Cynic2

    But post Maguire all such investigations are suspended aren’t they and is the Government going to pump more money in to a one sided process? Perhaps if they gave a few million to investigate La Mon and Jean McConville at the same time.

  • sonofstrongbow

    The office of the PONI is a busted flush. It was destroyed as an impartial body due to the antics of the first occupant of the top seat. The startling anti-RUC agenda ensured that PONI was always going to be a partisan vehicle for refighting the ‘war’.

    However even in its get-the-black-b……… mode it failed. There was no parade of RUC officers heading for the courts; the best that could be achieved was a litany of reports full of innuendo and imaginative language.

    This latest spate will be used by those who continue in the traditional Irish Republican mode of get the cops at all costs. Chuckee Arla and all that.

  • Comrade Stalin

    I’m not at all clear why this is now coming to light and what exactly the legal advice is. As John points out, the Police (Northern Ireland) Act 1998 specifically empowers the Ombudsman to investigate matters from the past.

    strongbow :

    However even in its get-the-black-b……… mode it failed. There was no parade of RUC officers heading for the courts; the best that could be achieved was a litany of reports full of innuendo and imaginative language.

    The vast majority of the complaints that the Ombudsman receives are rejected for one reason or another, and that was true for the several years between the establishment of the Ombudsman and the beginning of the implementation of the Patten report. That tends to negate your argument somewhat.

  • sonofstrongbow

    CS,

    You think so? Given that it was/is SOP to make complaints against police it is a given that many would be so outlandish that they would fall following even the most cursory of examinations.

    If you believe that there was not a concentrated effort to use PONI as a propaganda tool to further an anti-RUC agenda, an approach that received an unacceptably warm reception, then that is a matter for yourself. However the witch hunt against Al Hutchinson illustrates that the usual suspects will continue to agitate to get the office of the PONI back on message.

  • Comrade Stalin

    You think so? Given that it was/is SOP to make complaints against police it is a given that many would be so outlandish that they would fall following even the most cursory of examinations.

    What does “SOP” mean ?

    My point is that if you believe there was a deliberate effort to hound the RUC, it follows that a larger proportion of the complaints would be upheld including the spurious ones.

    However the witch hunt against Al Hutchinson illustrates that the usual suspects will continue to agitate to get the office of the PONI back on message.

    You don’t have to be familiar with the details of the supposed witch-hunt to see that he is not a terribly competent Ombudsman. For example, he released the report on the McGurk bombing and then withdrew it almost immediately to adjust it after negative press. He’s done the same thing on several other occasions. This shows that either he does not have the courage to stand over his own words, or that he rushes things out without properly checking all the details. Either way you are not left with the feeling that he is the right person for the job.

  • sonofstrongbow

    SOP – Standard Operating Procedure.

    You think Al works in that big building in Cathedral Quarter all on his lonesome?

    Here’s my pitch. Al is a decent guy, no axe to grind on the local whetstone – unlike some others I could mention. So his only interest is getting on with the job in hand. That by the way is investigating complaints against the police to ensure they learn from any mistakes they make and thereby deliver the best service they can to the people of Northern Ireland. Perhaps he sees the partisan obsession with the past as a distraction and more properly sited elsewhere.

    However perhaps some of the ancien regime within his office don’t gel with Al’s emphasis on the here and now and want to get back to what had seemingly become PONI’s stock in trade: The Troubles, Round II. Is it any surprise that the office became dysfunctional?

    If Al is to blame for anything it is his apparent reluctance to take a good long hard look at some of those who work for him and ask himself why are they working here. For this failure he perhaps should step down although I wonder will his replacement look to the future or back to the past.

  • Cynic2

    “Either way you are not left with the feeling that he is the right person for the job.”

    Yeah. We need someone more attuned to the ‘right’ findings to satisfy the ‘right’ people or they will hound him / her from office too