Investigations & Analysis - Northern Ireland
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HET acting illegally in approach to security force member connected killings

03 JULY 2012

HMIC inspector Stephen Otter
HMIC inspector Stephen Otter / presseye

By Barry McCaffrey

A police unit set up to investigate Troubles-related killings is in breach of international law by operating a policy of preferential treatment to members of the security forces over civilian victims, a government inspectorate has warned.

The Historical Enquiries Team was set up in 2005 to investigate 3,500 deaths which occurred during the Troubles.

However the unit has regularly been at the centre of criticism over claims that it cannot be independent as it employs former members of the RUC and PSNI to carry out the investigations.

In April 2012 Her Majesty’s Inspectorate of Constabulary (HMIC) was asked to investigate claims by leading academic, Dr Patricia Lundy, that HET did not properly investigate killings involving soldiers.

The report, which was published this afternoon, concludes that HET:

• Fails current policing standards in a “significant number of important areas”.

• Operates a policy of treating state involvement cases differently and with “less rigour” despite being based on a misinterpretation of the law.

• Is breaking human rights law by not carrying out proper and independent investigations.

Launching the report HMIC, inspector Stephen Otter said: “HMIC is concerned that the inconsistencies we found in our review may seriously undermine the capability of the HET’s processes to determine whether the force used in killings during the troubles was justified in state involvement cases, therefore potentially preventing the identification and punishment of those responsible.”

The report says that the PSNI and HET now need to make “fundamental improvements” to ensure that investigations are compliant with the European Commission for Human Rights (ECHR).

HMIC inspectors said they could find no evidence of any independent oversight within the investigations’ unit and called for a new independent panel to scrutinise all aspects of the work of the HET.

LACK OF INDEPENDENCE

The report found that the HET’s ability to demonstrate independence in how it has managed intelligence matters is undermined by the involvement of the former RUC and PSNI officers working for the HET in managing the information from the PSNI’s C3 intelligence branch.

While the HET insisted it was important to have officers with an understanding of PSNI systems, the HMIC report concluded that the decision undermined the unit’s ability to demonstrate an independent approach to the handling of intelligence.

The report found that the HET is operating a policy in which state killings involving security force members are investigated with “less rigour”.

“We found that the HET, as a matter of policy, treats deaths where there was state involvement differently from those cases where there is no state involvement.

“The latest Operational Guide provided by the HET states that it is not appropriate to compare state involvement cases (referred in the Operational Guide as ‘military cases’) and those without any state involvement.”

However the report states that the HET policy appeared to have been adopted without any reference to case law.

“It concerns us greatly that such an important organisation in Northern Ireland should adopt an approach to such a key area of its work based upon a view of the law that, even if it were ever correct, was manifestly and provably not correct by the time such policy came to be drafted.”

HMIC inspectors said they were surprised that this “substantial legal error” was perpetuated by the fact that the HET had not consulted with the Director for Public Prosecutions, Barra McGrory, or the Attorney General John Larkin, both of whom have ultimate responsibility for prosecution policy.

HET `PRAGMATIC APPROACH’ FOR SECURITY FORCE MEMBERS

In cases in which members of the security forces were responsible for Troubles-related deaths, HET investigators treated the soldiers or policemen involved as witnesses rather than potential suspects.

The HMIC report found that the HET refused to review this policy, despite a request by the Public Prosecution Service.

“The `pragmatic approach’ has been a cause of concern to others. We are aware that, on January 10 2011, there was a discussion between the HET and the Public Prosecution Service (PPS) about this issue.

“During the meeting a senior lawyer: `asked the HET representatives to review their strategic decision not to caution and involve the police in relation to interviewees who made admissions to serious crime’.”

The report found that a Memorandum of Understanding (MoU) was agreed between the PSNI and HET in 2010 which set out the way in which referrals should be made.

“Since the MoU with C2 (Serious Crime Department) came into effect in 2010, the HET has referred 39 legacy cases involving 119 victims to the PSNI for further investigation.

“Of these 39 cases, not one is a state involvement case.”

The report goes onto raise concerns over the amount of material that the HET provides to former security force members and their legal representatives in advance of them being interviewed.

“It is clear that different approaches are adopted by the HET teams in relation to the extent of the information which they provide to those who may be later interviewed, based on whether the suspect is a state actor or not. This approach to state involvement cases is illegal and untenable as it is inconsistent with the UK’s obligations under Article 2 of ECHR (European Court of Human Rights)."

REPORT FINDS LACK OF HET INDEPENDENCE

The report highlights the apparent lack of independence within the HET.

In one case a former RUC officer led the HET’s enquiry into a state involvement case, despite this being in breach of the HET’s own stated policy.

The former RUC officer was allowed to lead the enquiry despite undertakings which had been given to non government organisations and solicitors and the express wish of the family involved.

However the report goes on: “We understand that the officer in question actually knew the SIO (senior investigating officer) in charge of the original investigation.

“The HET adopts a `self-declaration’ process to prevent this happening; however, we did not find any evidence that these declarations were subject to any formal checks and validations.

“We consider that without a clear policy to identify former RUC or PSNI officers’ previous involvement in historical investigations the HET cannot guarantee that its systems are capable of preventing such situations in future.”

HMIC inspectors found that HETs intelligence unit is staffed largely by former employees of either the RUC or the PSNI.

It found that staff in the PSNI’s intelligence branch, some of whom are former RUC special Branch officers, are the “gatekeepers” for intelligence being passed to the HET.

The report recommends that in the future staff involved in investigating state cases should be vetted to guarantee the independence of any HET investigation.

Questioning the legality of the HET’s policy of giving preferential treatment to members of the security forces, the report says:

“Cases in which there has been state involvement are assigned to the red or white teams.

“We have learned that red team staff sometimes conduct interviews under caution in relation to state involvement cases, whereas, in all other types of cases, if evidential leads are uncovered, suspects are referred to C2 (PSNI) for interview under caution. Moreover it is left to the red team staff member’s discretion, under the pragmatic approach, whether to treat an interviewee as a suspect, and so to conduct an interview under caution, or whether to dispense with this.

“We consider that these practices, which would appear to derive from the HET’s different approach in state involvement cases, may seriously undermine the capability of the HET’s review process to lead to a determination of whether the force used was or was not justified in state involvement cases, and to the identification and punishment of those responsible.”

It adds: “Since 2010 it is striking that not one state involvement case relating to the British Army has to date been referred to the PSNI for further investigation or for prosecution.”

It concludes: “The deployment of former RUC and PSNI officers in state involvement cases easily gives rise to the view that the process lacks independence.”

Responding to the publication of today’s report, Dr Lundy said: "I think the HET as an organisation itself is irretrievable at this point.

“I think it has implications for lots of different cases, not just the army cases, because we’ve heard the structural problems, there’s no oversight, there’s no complaints procedure and really it seemed to me that it was a bit of a law unto itself.”

Chief Constable Matt Baggott responds to the HMIC report
Chief Constable Matt Baggott responds to the HMIC report / presseye

PSNI Chief Constable Matt Baggott said that all military cases investigated by HET will now be re-examined.

He accepted that “HET put in place a policy that was wrong”.

“A differential approach to military cases is wrong and I assure you this has ended,” he said.

Read full statement here.

In March the Detail revealed how the Ministry of Defence had been given assurances by the Attorney General and Public Prosecution Service that senior army officers would be allowed to intervene to protect soldiers from prosecution. Read story here.

In August 2011 the Detail revealed how former Police Ombudsman Al Hutchinson had lost the confidence of his senior staff over evidence that OPONI reports were being rewritten to exclude criticism of police officers. Read here

© The Detail 2013