Published Date: 29.03.2019
Here is the full text of Dr Maguire's speech.
What does independence mean?
The subject of my talk tonight is independence and what this means in the context of the criminal justice system.
Independence is one of the touchstones of criminal justice – nationally and internationally.
The perception and reality of independence is used as a measure of performance and has legal implications within the context of investigations. Each of the criminal justice organisations (PSNI, PPS, PONI, CJI, and judiciary) guard their independence jealously and rightly so.
At one level discussion of the topic is pretty straightforward - it means “free from outside control or not subject to another’s authority.”
Thus investigations are independent and free from political interference, prosecutorial decisions are taken on the basis of the evidence and judgements are handed down without fear or favour. These are things we take for granted.
Yet it is an area of constant debate – perception and reality merging together to form often competing narratives about organisations and how they perform. It is often the first line of attack for someone who doesn’t like the conclusion of our work – I do not believe an independent decision was taken.
What I want to talk about tonight is my experience in this area having spent 4 years as Chief Inspector of Criminal Justice in Northern Ireland and 7 years as Police Ombudsman.
What are the areas to watch to ensure that independence is not compromised? It is interesting, thinking back when I first joined the organisation, some of the issues I didn’t see coming while others have been on a scale I couldn’t have anticipated.
My starting point is what independence means in practice and how do you ensure it is maintained.
My conclusion, for what it’s worth, is that we have safeguards that are among the best in the world.
But, and here is the beef – independence is a fragile thing, hard won and easily lost. It requires constant protection as it can be under threat from some subtle and not so subtle attacks. You take it for granted at your peril.
Starting point is strong
Where to begin. I would like to take us away from Northern Ireland for the moment.
There is a case in the Australian State of Victoria which caught my interest recently. It concerns allegations that Victoria Police used a Barrister as a paid informer to provide information on her clients. This has led to the establishment of a Royal Commission on the issue and the subsequent revelation that a further 6 members of the legal profession were informers for the police. The work of the Commission is on-going.
A strange case you will agree which raises significant issues not only about legal ethics but about the police attitude to the use of paid informers.
The unusual recruitment came at a time of gangland killings in Melbourne and significant pressure on the police to “do something.” We will be familiar with the call.
The police did indeed do something, including the recruitment of a defence barrister as an informant and a number of high profile gangsters were convicted.
A case of the end justifying the means you might think – “noble cause corruption” as a justification.
It now looks like these convictions may well be subject to challenge and possibly overturned. Confidence in the police has been severely damaged.
This is only one is a number of controversial cases involving the Victoria Police which have raised concerns about the transparency, impartially and effectiveness of current police complaint handling and oversight arrangements.
Prior to the Barrister / Informer scandal the Parliament of Victoria established an inquiry into the external oversight of police corruption and misconduct in Victoria.
So what I hear you thinking. What has this got to do with independence?
What is interesting about what has happened in Victoria is where they have looked to for solutions.
Front and centre - believe it or not - has been the Office of the Police Ombudsman in Northern Ireland. I gave evidence to the Committee and they note in their report and I quote:-
“PONI is often regarded as the “gold standard” in complaints handling and oversight systems, an exemplary Civilian Control system. For example Professor Prenzler concluded that the ‘office appears to have been successful and it remains the standout agency internationally.’ This view was reflected in much of the evidence the Committee received in this inquiry.”
In different research Professor Prenzler – regarded as one of the foremost writers on police oversight across the world – examined the different approaches to police oversight in Australia, Europe, Asia and the USA. His conclusions might surprise you.
Taking “civilian police oversight” as the gold standard for handling complaints against the police he states “scholars have accepted that (PONI) fits the civilian control model and is possibly the only oversight agency on the world that ticks enough boxes to be categorised in that way.”
Overall control of the police complaints process, the ability to make recommendations, publish reports, access information are all underpinned by legislation. These are areas that others look to with envy.
For example investigations into deaths caused by police in Australia and the USA are conducted by police. In England, Wales and Scotland if you make a complaint against the police you have a 75% chance it will be investigated by another police officer.
Policing reform part of political reform
The reasons for PONI strengths are well rehearsed as to why there should be the need for a strong police complaints system in Northern Ireland.
Policing in Northern Ireland was and in many areas continues to be, a contested space. The political reform of the Good Friday Agreement was in many respects underpinned by policing reform under Patten and a strong desire to have strong mechanisms of police accountability.
The late Maurice Hayes who wrote the document that established the Office saw independence as the starting point for success. He stated:-
“The overwhelming message I got from nearly all sides and from all political parties was the need for the investigation to be independent and to be seen to be independence…The main value was impressed on me was independence, independence, independence.”
It has been a critical factor as the Office has developed over the last 19 years. Recent research shows that we have had some measure of success – 83% of the public believe we were independent of the police and 86% felt we helped the police to do a good job, 71% of police officers believed the Office was independent and 76% of complaints believe they were treated fairly.
But as said earlier these are things that cannot be taken for granted - independence is a fragile thing, hard won and easily lost.
The challenge to independence comes from a number of sources – some subtle and not so subtle. You take it for granted at your peril.
In thinking about these issues there may well be relevance for other public sector bodies that value their independent status. I wouldn’t overstate it but as we have seen with the recent scandals (eg RHI) “accountability & oversight” remains a strong area for concern.
Maintaining an independent perspective and position is central to avoiding both the perception and practice of oversight bodies being asleep at the wheel.
So what lessons can be learned from the Office of the Police Ombudsman.
There are three particular areas worthy of discussion. My thoughts here have been helped by some work undertaken by Professor Stephen Shute, University of Sussex, on criminal justice inspection bodies in the UK.
Firstly, financial independence.
It is often said he who pays the piper calls the tune. How can you truly say you are independent when the purse strings are held by someone else?
Clearly there are legislative protections here which underpin the investigative independence of my Office. In my 11 years heading criminal justice oversight bodies I cannot think of 1 example where a Minister has tried to influence decision making.
Any Minister with responsibility for police oversight would be extremely foolish to try and interfere with decision making and in my experience has never done so.
My experience with civil servants has also been positive. In the vast majority of cases they have acted professionally and with a correct understanding of the relationship between the sponsor Department and the Oversight Body.
Very occasionally, there have been attempts which have overstepped the mark. As an aside, I do remember under direct rule wanting to brief the then Minister, without his civil servants present, about a sensitive topic on prisons. It was by pure “coincidence” that a senior civil servant in the sponsor department initiated a conversation about the fact my contract was coming to an end and their need to consider a possible extension. I went ahead and briefed the Minister without his civil servants present. Examples such as this have been few and far between.
This is pretty mild and easily batted away. I do wonder if this has been an issue for other oversight bodies that produce a report which might embarrass a Minister of the Department. Anecdotes I have heard would suggest not, but that’s for them to consider how they handle such inappropriate contact.
The risk is that it can lead to self-censorship and the dilution of difficult but necessary messages.
Yet funding is a political decision. All politicians in power have to make difficult decisions about competing priorities. Here the challenge is one of ensuring that the necessary funding is provided to undertake the work. We all want funding for our own organisations and decisions on prioritisation have to be made.
My legacy investigations are a case in point. In 2012 when I was appointed I had c170 legacy complaints and around 40 staff. Today I have over 430 complaints – the vast majority involving allegations of serious police misconduct or criminality – and less than 30 staff.
Let me be very clear. I am not saying that there has been some form of conspiracy to underfund the Office to undermine its ability to investigate the past, although there are some who would argue this is the case.
The budget cuts facing the Office have been part of a general austerity drive across the public sector and in certain areas we have suffered less than others.
But is it a – perhaps unintended consequence – of the failure to fund legacy work that has forced the Office to prioritise which legacy cases it can work on. Thus independence of decision making can be compromised because we don’t have control of our budget.
The impact of having to do more with less is a constant refrain across the public sector. It becomes dangerous when it directly impacts on what cases can be investigated and how long these investigations take.
I am genuinely tired having to apologise to families for the length of time cases take. This pails into insignificant compared to the impact on those who have had to wait many years for answers to what happened.
An independent office needs to have the resources, skills and procedures it requires to provide an independent complaints service.
Boiling the frog
This brings me to the second area. There is a Chinese proverb that concerns the boiling of a frog. Placing a frog in boiling water means it will jump out. Placing a frog in cold water and gradually turning up the heat will mean the frog will be cooked.
This rather gruesome image is often presented as demonstrating the dangers of slow incremental change – by the time you realise it is a dramatic change it is too late to do anything about it.
This is an area that any oversight body has to be constantly aware of. Such challenges are often presented in the language of managerialism. The need for greater efficiencies mean that accommodation has to be shared, capital budgets have to be controlled, HR practices have to be centralized. We are constantly being asked to ensure our policies and procedures are consistent with the NI Civil Service and to participate in central initiatives.
So what you might ask.
The problem is PONI is an investigative body with its own unique culture and ethos – based around the principals of civilian police oversight. That distinctiveness and clarity of purpose and capacity for flexibility in operational decision making has made a significant contribution to the building of a successful office.
The more the Office becomes integrated within central initiatives the less distinctive it becomes not only in the minds of those who work for it but equally importantly in the minds of the public who we provide a service to.
Allowed to work their course the police oversight organisation that exists in 5 -10 years may be very different. This is not a direct challenge but rather occurring through the back door of “managerialism, budgetary constraints and public sector efficiency.
For example the freedom to make recruitment decisions is critical. We have seen elsewhere the risks of “regulatory capture” – which occurs when an agency created to act in the public interest, advances instead the concerns of the industry or sector it is charged with regulating. Such a position can occur if there is too much movement between organisations.
One of the worst examples I can think of can be found in the Ryan Report, published a number of years ago, into sexual abuse of children in Ireland. He says the education inspectorate was captured by the religious, schools and the Department of Education and significantly failed in their duty of care to the children.
It is often said that only professionals can only regulate / inspect / oversee, other professionals – lawyers examining lawyers, doctors examining doctors, teachers inspecting teachers and so on.
It is only recently that HM Inspectorate of Constabulary recruited senior inspectors who were not police officers. I is one of the strengths I believe of “civilian oversight” of the police here that we have a mix of people drawn from a variety of backgrounds. Don’t get me wrong I need to have ex police officers as part of my organisation but the culture and ethos should be our own.
Perception is important as well as reality. There are lessons to be learned from other jurisdictions. I note that the police oversight bodies in Scotland and in England and Wales prohibit a police officer from holding the top post.
Independence is not therefore just about decision making. The organisational context that decision are made is critically important:-
- Finance does determine when cases can be investigated and how long an investigation can take.
- Recruitment procedures do determine the nature and type of organisation
- Accommodation does influence the character and ethos of the organisation.
While we can make an argument our funding is not derived from the police it is difficult to say it can be spent within the complete discretion of the Office.
Clearly there cannot be complete autonomy. A Minister (under devolution – remember that) has to be accountable to the Executive for the budget spend within the Office.
No Minister would, as I have said, involve themselves in the decision making around cases. Yet the context and framework within which these decisions are taken fall within his or her decision making.
Independence of judgement
The final area and the one in which we have most control is independent judgement or put another way independent decision making.
It is also, perversely, the area of greatest challenge.
For some people a good Police Ombudsman Report is like a good exam question. It’s one you know the answer to. All too often if you don’t like the answer you don’t like the report.
Northern Ireland has many public bodies which provide an independent service, but has very few which hold our authorities to account and do so in public. Two that spring to mind are the National Audit Office and the Northern Ireland Public Services Ombudsman.
But it would be fair to say neither Office has been in the eye of the storm the way my Office has been since it opened 19 years ago.
One of my colleagues who has served in the Office for all of these 19 years remarked to me recently that it had always to fight for its independence, but that fight was now more intense and frequent than it had ever been.
Certainly at times it felt like we were under attack. Whether it was from a lack of funding, judicial reviews, and elements of a hostile media set against everything we do.
This ability to cherry pick reports - focus on the ones you disagree with while ignoring the ones you like has taken on an art form.
Thus we are accused of being obsessed with the term “collusion.” Those who say this obviously have not taken the time to look at the work we do. Of the 14 legacy reports we have published we have found no evidence of collusion in 11 of them. Hardly an obsession.
We are accused of grandstanding and hogging the headlines, of a witch hunt against police officers focusing on what has gone wrong. That we don’t understand policing.
Again I would say that the evidence does not stack up. We find an outcome in favour of a complainant in around 30% of cases – put another way we say there was nothing to substantiate a complaint in 70% of cases. We publish around 50 case studies a year. If you are bothered to read them you will see that there is a real balance of both criticising the police and showing they did no wrong. Hardly a witch hunt.
To those who say we don’t understand policing I say you don’t understand police accountability.
A finding by my office that the police did no wrong is as valuable as one which says the police activities fell below the standards expected.
Yes, we have been very critical of the police and in a very public way. There have also been times when we have addressed serious allegations of police criminality and misconduct and determined there was no substance to the allegations.
That these conclusions have gone largely unchallenged I would argue is because we have not been afraid to publically criticise the police when it was necessary to do so. That is accountability in practice.
It is of course right that the reports of the Office are subject to public scrutiny – transparency is an important part of demonstrating independence. The power to publish one particular report is currently under challenge in the Courts and I will say no more at this stage.
Challenge becomes dangerous to independence when it is weaponised and there are attempts to undermine everything you do because you dislike some things.
Before I became Police Ombudsman in 2012 I undertook an investigation into the independence of the Office as the Chief Inspector of Criminal Justice. It seems like a long time ago now. Certainly, many of the issues considered important then have thankfully been taken off the table. This is due in no large part to the hard work of staff within the Office.
At the time I said the operational independence of the office had been lowered, partly because its reports appeared to be buffeted from a number of different directions, which led to a lack of confidence among many involved in the process.
It is ironic that the Office which has been lauded as having the most robust legislation, independent organisation and control of the complaints process would have been criticised for independence of judgement.
This takes me to the critical lesson I have learned during my time in office. The need for an independent mind set, which is evidence based, and which resists the pressures for taking unpopular views
You can have all the safeguards you want but if an independent mind set is not there and you are reluctant to say difficult things there is a problem.
Conclusion – independence hard won and easily lost
So what’s the conclusion? Firstly, the obvious one is that you cannot take independence for granted. It can be undermined in a number of different ways. Whoever holds the post of police ombudsman must keep this in mind. Be aware some entirely innocent initiatives can have unintended consequences.
Secondly, it’s not enough to be aware. You have to take action. You need to be a thorn in the side of those you are holding to account and who have the power to influence what you do. This should not be destructive but protect the office and what it does. Society in general and policing in particular will benefit from strong evidence based opinions freely given.
Finally, and most importantly independence of judgement is the key. Independent mind set and perspective are essential. Independence is about coming to an evidence based view. That’s why we are seldom away from the headlines. The Northern Ireland population are not fools. If you want people to accept you are independent then you have to provide them with the evidence to let them make up their mind.