Avoid a battle of the narratives. The Chief Constable and Police Ombudsman appeal for agreement emerging from the proposed legacy process

Eamonn Mallie has published  transcripts of Chief Constable George Hamilton and Police Ombudsman Dr Michael Maguire addressing a gathering at Queen’s University on the approaches they hope will be  adopted on the consultation just launched on dealing with the past. I shamelessly share them with warm thanks to Eamonn.

Both  men plead for responders not to adopt a polarised or polemical position right from the start and take the broader view that works for reconciliation. They also call for a central purpose to be set for the proposed new institutions which is currently absent. If this doesn’t happen, the whole process of truth recovery could worsen rather than improve community relations.  Unfortunately neither specifies how this could be achieved. In their speeches both home in on “collusion” which they clearly believe is the subject that more than any other divides opinion and yet  defies easy definition. Presumably  they didn’t collude on arguments  they make but they ended up taking  very similar lines.

Extracts

Lessons from the past and building for the future – by Chief Constable George Hamilton.

 Prosecutions  will be few and we must also adopt other ways of dealing with the past  He implies that there is no necessary bias against the security  forces in the proposed brief  for the Historical Investigations Unit (HIU).

A few bad apples or collusion?

Playing God”; “the end justifies the means”; “collusion”?

Whatever term is used to describe it, it was not right and it was not what policing was supposed to be about.

While there is no criminal charge of collusion; if there is evidence the law is broken, there are a range of charges that can be brought – Conspiracy to Commit Murder; Withholding Information; Assisting Offenders; Misfeasance in Public Office and many more.

There should be no hiding place for anyone who broke the law or acted with criminal intent – be they police officer or paramilitary.

A significant difference between investigating police actions in the past and investigating paramilitaries in the past – is that the police kept records. They were different times and the record keeping was not to the standards that it is today, but I have ensured that the Ombudsman has unfettered access to the millions of pieces of information the Police Service holds.

Intent

Although there is no agreed definition, the term collusion signals malevolent intent. Intent is an issue that is rarely discussed in all the public debate on collusion. Over the years, through all the Public Inquiries; Ombudsman Reports; and different reviews of policing during the troubles, the number of police officers who were shown to have had a sinister intent were a very small number and a small number of police officers have been prosecuted for criminal acts.

.The environment in which they worked was chaotic – terrorist attacks were happening on a daily basis, and many lives were being lost. Investigations struggled to keep pace with the rate of murder and serious injury. The pressure was extreme. In these extraordinarily difficult and dangerous circumstances, the intent with which the vast majority of decisions were made was for the protection of the community. But they were, on many occasions, decisions and judgements that should not have been taken; and, I believe, would not have been taken if there had been a proper regulatory framework in place.

The RUC recognised the almost impossible situation they were in and the Da Silva Review makes reference to the fact that the RUC had asked Government for a framework, guidance or legislation on many occasions. Nothing was forthcoming.

The debate last week dangerously over-simplified the complexities of dealing with the past in Northern Ireland. The figures for PSNI’s Legacy Investigations Branch are in the public domain and clearly show that members of the armed forces are not the only people being investigated for their actions in the past. However, Legacy Investigations Brach is only one part of a confusing landscape of processes to deal with the past in Northern Ireland, which includes among others the coronial inquests, public inquiries, Police Ombudsman investigations, the Criminal Cases Review Commission, civil litigation and Freedom of Information.

The current piecemeal approach to the past is not working. The Police Service and the other criminal justice bodies of the present are neither resourced or set-up to adequately address the past.

And it does not feel that the story of our past is being told in a way that is fulsome or fair. The processes of law alone are not capable of healing the hurt caused by our conflict.

Around 3500 people lost their lives during the troubles. Many of the cases remain unresolved. The very cold reality is that the older a case, the harder it is prosecute. While some cases will lend themselves to further progress through the judicial system, with forensic science providing the greatest chances; judicial closure is increasingly unlikely in the majority of cases. Memories have faded; witnesses and suspects may have died. The hurt however will not have eased and many families will have questions they still want answered.

 

Victimhood and dealing with the Past in Northern Ireland’ – by Police Ombudsman Dr Michael Maguire

I am entering my 7th and final year in the role as Police Ombudsman and I speak to you this morning as someone who has had the responsibility for investigating legacy cases for the past 6 years.

It is necessary to pose the question of whether mechanisms for dealing with the past will make matters better or worse. One of the core principles of the Stormont House Agreement was to “promote reconciliation”.

Much of the debates / arguments I have seen around the implementation of the Stormont House Agreement have been institutional / operational in nature – what should the time period be? What about the appeal mechanism? When should the clock start on funding? What are the powers of the Director?

This is not to undermine the importance of these issues – let me be very clear – they are hugely important so that the proposed organisations start with a foundation of credibility and support.

But there is little debate about what we are trying to achieve beyond platitudes to answer the needs to victims and families. In my view the needs of victims and families and indeed future generations will not be served if we fail to have some sense of where we want to go in dealing with the problems of the past. Will we end up creating more divisions?

Our experience is not positive. The current debate on controlling the narrative of the past is a case in point. Some would argue that the narrative has been controlled by those who wish to criticise the state at the expense of those who carried out the majority of the killings. There are allegations of a “rewriting the past”, much of which focuses around the term “collusion”. This varies from – there may have been “bad apples”, to a complete rejection of the concept at all – the “collusion lie”.

Alternatively, there are those who place collusion at the heart of the troubles in Northern Ireland and argue that intelligence led policing created the circumstances of systematic and widespread collusion between the elements of the state and paramilitaries of both sides.

Let me digress for a second and challenge the assertion made by some that PONI is fixated with the term collusion. It is simply not borne out by the facts. In the 17 years history of the Office we have published 14 reports into collusion between the police and paramilitaries and found this to be the case in 3 cases, one for each Ombudsman. I personally have examined 6 legacy cases and called it only once – in the circumstances around the Loughlinisland murders. This as you will be aware is the subject of an on-going judicial review. Furthermore, the definition I used by Judge Smithwick was to try and get some consistency into the debate. It helped that it was a definition accepted by the PSNI. There were some who were happy to accept this definition when it was used to say there was collusion between An Garda Siochana and the IRA in the murder of two RUC officers – but criticised it as being too wide when used in Northern Ireland. What I have also noticed is a cherry picking approach to reports which is regrettable – the banking of conclusions which are liked and a challenge to the conclusions which are disagreed with.

Again this illustrates the contested space that is our history. Contrary to the opinion of some I have no agenda when it comes to any report. As I said last week a report which says the police did no wrong is as important as one which is critical of policing  – both now and in the past. But I digress. The question remains as to whether we as a society can begin to heal around the past without challenging some of the orthodoxies on both sides. Can the discussion on the past be meaningful without being polarising?

Again, experience is against us. I would suggest that the competing narratives of the past in Northern Ireland are more polarised now than ever before. Some would argue that controlling the narrative of the past is the new battleground.

Is there a different way and what does it look like? At a political level the answer is probably no as the debate inevitably becomes a zero sum position.  If I win – you lose.

Indeed it is likely to become even more polarised in the absence of political structures to provide a forum for this debate and in the absence of this both sides of the argument will continue to shout over the wall at each other, with increasing bitterness and volume.

Clearly, how the work of the Stormont House Agreement institutions land will be impacted by a range of factors. They include the political context and a political vacuum does not help.

Some of these issues will be addressed by process. What will be the governance of the HIU, who will be involved and how will reports be delivered and so on? These issues as I have said are hugely important to build confidence in the work of the Unit at an early stage.

What is clear is that investigating the past in the same way and expecting different results will not work. How will we ensure that divisions are not healed but widened? For example, how will the HIU address difficult issues such as “collusion?”

I think there is some work that needs to be done to prepare the ground. It is possible, and I fully appreciate this may be wishful thinking, to have non polarised debate on the topic of collusion.

A number of things need to happen. Firstly at a basic level we need to move beyond entrenched positions. Put simply – there is no collusion lie – it did exist, people died and others escaped justice as a consequence. There is too much evidence to suggest otherwise. Leaving aside my own reports in this area there is a mountain of evidence that people were protected and bad things happened as a consequence.

Judge Smithwick took the view that while collusion can of course amount to criminal conduct it is a significantly broader concept which will include other forms of behaviour which may not necessarily be criminal but which should be opposed on moral and/or official grounds. In any case there is a difference in having information about criminality and being able to translate it into signed witness statements.

To suggest that simply because no officers have never been prosecuted means that it didn’t happen, doesn’t make sense to me and is contrary to the evidence I, and significantly others, have seen and reported on.

Yes, it needs to be said again that the widespread use of informants saved lives. But an absolute position that failures were few and far between and that the end justified the means is not borne out by the evidence.

Likewise, any position which takes the view collusion was policing policy and as a consequence systematic and endemic is at odds will all the evidence I have seen and this is likely to be the case for the HIU as well. We are then stuck in the position of “I believe this happened and you simply failed to find the evidence.” That does not mean there were no investigative failures or that the management of informants was on occasion considerably flawed. But to call this institutional failure “collusion” in every case is to distort and dilute what actually happened and to introduce a toxicity into the debate which is, as we have seen, profoundly unhelpful. So going back to the starting point that in considering the implementation of the Stormont House Agreement organisations I recognise there is an immediate challenge in establishing an organisation that has the confidence of those who will be dealing with it.

As it stands the proposed HIU picks the can up and kicks it further down the road. The good thing is that there are other mechanisms (oral history, information retrieval, reconciliation group) which aim to deal with the challenges of the past in a way which has not been done before. To get different results we need to do things differently in thinking about the past and what it means.

The wider challenge, therefore, and perhaps a more difficult one, is to ensure that the end result must be one of building a stable and shared society rather than undermining its foundations. There are uncomfortable truths to be told – how we are going to tell them and how we respond will be the critical issue.