‘Victimhood and Dealing with the Past’ conference at QUB

Published Date: 14.05.2018

Good morning and thank you for the opportunity to speak with you today.

I am entering my seventh 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 six years. As a spoiler, it’s not my role to enter into the world of Northern Ireland politics, and nothing I say should be interpreted as such. My observations are based on my practical experience of dealing with this controversial and difficult issue over that time period.

My purpose this morning is to offer some thoughts around a new conversation around legacy issues, particularly in the context of the establishment of a new approach to dealing with the past in Northern Ireland. In particular to think about the polarising debates around legacy and share some concerns for the future unless we develop a different approach to handling some of these sensitive and important issues.

I want to begin with a conversation I had with a family member who had a report from the office. They alleged “collusion” and in particular made reference to an individual who they argued was being protected. I was able to tell them that the individual concerned was in prison at the time of the murder and there was no evidence they had been involved. Their response was “I don’t believe you”. On another occasion there was another allegation of “collusion” and we were able to determine there was no evidence that the named individuals were involved. Again the view of the family member was disbelief as this had been their narrative for many years.

I give these examples, not to criticise the families involved, but rather to illustrate the difficulties in delivering messages of this type. Their view was “I believe this happened and you simply failed to find the evidence”. There is very little I can do to compete with such narratives, other than report on the evidence.

Unfortunately we cannot retain only our versions of the truth. As we move forward and what happened here is subject to more substantive investigation and research, and the past is considered, there will be uncomfortable truths for everyone. We cannot pick and choose. It raises the question of whether we will be able to accept the truth when it begins to emerge.

As you will be aware the Office has not been without its problems in this area – indeed my arrival in the job in 2012 came about as a consequence of how the Office investigated legacy issues. Of course for victims and their families the term “legacy” doesn’t work. For many the pain and suffering is very real and alive today. There is nothing historical about the cases for them.

During my period as Ombudsman
* I have published six legacy reports, most of which have been well received
* I have had to take the PSNI to judicial review for the release of information
* I have been subject to a judicial review around the powers of the office in relation to a legacy report; this is on-going
* I am cooperating with a criminal investigation into sensitive information allegedly stolen from the Office over 10 years ago concerning a legacy case
* I have publically criticised my sponsor Department for failing to adequately fund this area of work.
* The funding for my office into legacy matters has also been the subject of a number of judicial reviews and appeals
* There have been calls for my resignation on a number of occasions - all this as a consequence of legacy related issues.

The legacy work of the Office comprises 23 per cent of my budget. I give these examples simply to highlight the challenges of the subject matter and its impact. It is, however, one of the ironies of the Office that a discussion of the Police Ombudsman might be, to use the old football cliché, a “game of two halves”.

I get referrals from all political parties about contemporary policing issues. They deal with issues on the ground. The ability of the Office to undertake an independent investigation often takes the heat out of what can be a tricky situation. This is the way it should be.

As we have seen quite recently the fact that the Office can say “nothing to see here” is as important as when we criticise the police and recommend improvements. Yet the conversation can turn very quickly when the discussion around legacy cases comes up.

This is I realise not personal – the two previous Ombudsman – for very different reasons - had problems with legacy investigations. So to say it is a challenging topic is somewhat of an understatement. Some of the critics of the Office are effusive in their support for the concept of the Police Ombudsman - except when it comes to legacy issues.

Let me begin with what some might argue is the bleeding obvious. That is, the current ways of dealing with the past in Northern Ireland are not working. The current approaches are in my view:
* Underfunded – PONI has around £2m per annum to deal with over 400 legacy cases. Inquests have not received the funding requested by the LCJ and the police themselves have said very publically, dealing with the past impacts on the current policing budget.
* I would compare this with Operation Kenova which has in the region of £30m to examine around 50 potential cases.
* I only look at the police. The PSNI have a broader remit but can only conduct a limited number of investigations – there are thousands of unsolved murders
* Dysfunctional – an often used word. What it means in this context is that investigations are not joined up – and that there is no comprehensive approach to investigating legacy as organisations (e.g. HET) come and go.

I have said before it would be much better for the legacy work of the Office and the police to be undertaken elsewhere – to allow both organisations to concentrate on contemporary policing issues without being drawn into the controversies of the past.

Twenty years after the Good Friday Agreement there is still no agreement on the way forward. I remember asking a senior politician why it was not dealt with at the time. His response was simple – we would not have got any agreement. It was simply kicked into touch. So the problem remains unresolved. Various options have been considered at different times:

* Do nothing or do minimum – I can’t help but think there is an element of wishful thinking here, the problem will gradually resolve itself as those involved in the conflict die. This seems to me a particularly heartless solution as it leaves the majority of families who have been affected in Northern Ireland without answers and it continues to burden criminal justice organisations with a problem they cannot resolve without further funding. I also think it is impractical as I am finding that issues within families are becoming intergenerational. Put simply the problem will not go away but continue to fester and create difficulties.
* There have been at various times calls for a line to be drawn on the past – forget about it and move on. Again this is wishful thinking by some as the problems of the past will not go away. They will continue to be fought in different circumstances and different fora. The fact that we are still discussing these issues 20 years after the GFA tells us that the problem will not go away.

This leaves the most recent manifestation of the issue. The debate around the structures arising from the Stormont House Agreement. The consultation document was, as we know, published last Friday. It proposes various organisations to deal with different elements of the past, according to the wishes of victims and their families –
Criminal justice investigations by the HIU
Truth recovery and oral history etc…

My position, and the devil will be in the detail, is that in principle and in practice this has the potential to be a much better way of dealing with the past compared to now. It will be better funded, more comprehensive in approach and provide answers to those who do not want to enter into the blunt instrument that is the criminal justice system.

In considering the proposals let not the perfect be the enemy of the good.

There will be much argument around what such organisations need to do to be effective – I am sure much of this will be debated today. I will come back to the issues of structures and organisations later but at this stage I think there is one area that needs to be debated up front - and that is why are we doing it – why are we investigating the past at all?

This may surprise you given my previous statements but by asking the question I am not coming from the perspective that we should not investigate the past – families demand this to be the case – but rather a different question of ‘what are we trying to achieve by dealing with the past?’.

In the recent book “Legacy” edited by Jeffrey Dudgeon there are a range of articles. One in particular by Trevor Ringland sets out an interesting challenge. In the article Trevor argues: “In dealing with the consequences of the conflict, we must maintain a focus on the challenge to build a peaceful, stable and shared society in Northern Ireland, on this island and between these islands.”

I take this to mean that there has to be an end goal of dealing with the past – it is not just a means to an end in itself. In this context 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 and 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 of 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 year history of the Office we have published 14 reports into collusion between the police and paramilitaries and found this to be the case in three cases, one for each Ombudsman. I personally have examined six 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 ongoing 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 ever 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 with 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.

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