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CORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 78-iv House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE NORTHERN IRELAND AFFAIRS COMMITTEE
Wednesday 4 February 2009 SIR ALASDAIR FRASER MR AL HUTCHINSON and MR JIM COUPLAND Evidence heard in Public Questions 260 - 311
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Northern Ireland Affairs Committee on Wednesday 4 February 2009 Members present Sir Patrick Cormack, in the Chair Mr Christopher Fraser Mr Stephen Hepburn Lady Hermon Mr Denis Murphy Stephen Pound ________________ Witness: Sir Alasdair Fraser, Director, Public Prosecution Service, gave evidence. Q260 Chairman: Good afternoon; can I welcome you on behalf of the Committee and say how very nice it is to see you again. We have always enjoyed our encounters in the past and we have been grateful for the clear and very precise evidence that you have given in two previous inquiries, so we are particularly appreciative that you have come over. We hope you had a reasonable flight and that you can beat the snow when you go back. Sir Alasdair, as you will obviously be aware what we are doing in this current inquiry is looking at a whole range of issues where cross-border co-operation is not only desirable but truly necessary. We were in Dublin last week meeting a variety of people in the public; we saw the Commissioner of the Garda Siochana with all his senior colleagues in fact, we saw the Commissioner of the Revenue, we met the Minister for Justice and we met informally the Attorney-General and your counterpart and others at a reception and dinner which our Ambassador arranged for us. The impression that we came away with was that relations between the UK and the Republic have never been stronger and that not only are there very good working relationships but there are good personal relationships and friendships that have built up as a result of post co-operation. Would you like to tell us how you see things from your very important perspective and how the co-operation that your office maintains compares with what is required with the rest of the UK? Sir Alasdair Fraser: Briefly I have provided the Committee with a memorandum setting out the main points of the contact. Since I was appointed in 1989 I have found that my counterpart, the then Director, was immensely strong in his support of my service, particularly when we were attending conferences at which perhaps differing views would be expressed about the integrity of the justice system in Northern Ireland. The then Director was at great pains to support my service and indeed the judiciary and from that support developed increasingly a professional working relationship with the Director in Dublin over a range of issues that have ranged from the appointment of his deputy, in which I was involved as Director on the board, through to policy issues. Q261 Chairman: You helped to select his deputy. Sir Alasdair Fraser: Yes, in terms of making a recommendation through the Cabinet secretary to the Taoiseach. There was a small committee who were interviewing a range of candidates and I was invited to join that. We have had contact on policy and individual cases, we have had an exchange of visits on issues which would be wider than prosecution issues - information technology, case management systems and the like - we have co-hosted a conference of heads of prosecuting services and we are co-hosting a conference in March of this year on cross-border support in relation to the EU and there are developments with which we are both concerned with the NIO, the police, the DPP in the Republic and the Guards in terms of practical arrangements which would facilitate the prosecution and investigation of crime. It is a profitable relationship based on, I hope, a mutuality of respect that has grown over a 20-year period. Q262 Chairman: That is very encouraging. Can you give the Committee any specific examples of cases in which a defendant from Northern Ireland has been successfully prosecuted in the Republic or vice versa, and can you give us some idea of the average number of cases in a year? Sir Alasdair Fraser: The number of cases which we have prosecuted under the Criminal Jurisdiction Act is limited; I believe there to be about 18 cases[1] over that period of time. That does not in any sense diminish the usefulness of the legislation as the land border clearly makes it relatively easy for individuals to flee from one jurisdiction to another and over a period of time our experience in regard to extradition was not as good as it is today, so there was a value in it. There are still cases which are in the system; there are two cases which are live cases concerning two separate murders which the authorities in the Republic are both examining and giving us assistance about, but clearly, Sir Patrick, I would be careful perhaps not to identify those particular cases. Q263 Chairman: I would not wish you to, Sir Alasdair, but are there any completed cases that you can quote that you can obviously without any qualms identify for the Committee? Sir Alasdair Fraser: For example there was a murder a number of years ago in Galway in which a Belfast man was in the city; he fled back to his home, he was arrested by police in Northern Ireland, warrants were not sent by the Garda, we took over that case, secured the evidence and prosecuted and he was convicted for that. There have been a number of cases involving the possession of firearms or the possession of explosives in the Republic that we have prosecuted in Northern Ireland. It is not, as I say, a frequent occurrence but it has taken place in 18 cases. [2] Chairman: Thank you very much. Could I bring in Denis Murphy. Q264 Mr Murphy: Thank you, Sir Patrick. Of those cases would it be normal practice for you to meet with your counterpart to discuss each of the cases? Sir Alasdair Fraser: No. I would become aware of a case from the police; the police would inform me that they were arresting or had arrested a person that they had charged or were to charge with an extraterritorial offence and at that point we would take over the carriage of the prosecution. There might well be issues which would arise which would be assisted by a meeting and meetings have taken place; an obvious example would be whether we were able to meet our duties as prosecutors in regard to disclosure and we would have to satisfy ourselves that we had been provided by the police with the material which we would be under a duty to disclose to the defence to secure a fair trial. That is something that the working group set up recently by the Northern Ireland Office and the Secretary-General of the Department of Justice has identified as a productive area that we should focus on. Q265 Mr Murphy: Have you protocols in place to determine who would actually lead on any particular case? For argument, would it be the Director in the area that the offence was committed or in the area where the person was arrested? Sir Alasdair Fraser: We have not found a need at this point to develop a protocol. If one is looking at this type of case there might well be broad agreement that a prosecution should take place and indeed investigation should take place in the place where the offence was committed, and that might well be the starting point for a Director's consideration. If that is not achieved then we have the facility by reason of this legislation to have an extraordinary jurisdiction, which is unusual, and is extraterritorial. There has not yet been a need for protocols but it may arise. Q266 Mr Murphy: So in each of the 18 cases you mention you have managed to reach agreement without any problem with your counterpart. Sir Alasdair Fraser: Parliament has given the prosecutor the facility to bring a prosecution in Northern Ireland in respect of an offence committed in the Republic. I do not need to secure the agreement of my counterpart, what I may need from case to case is to ensure that he provides such assistance as he can and that the Garda Siochana also provides such assistance as they can to the police service. That can be achieved through a number of mechanisms: we can issue letters of request which would be responded to by the Garda Siochana looking for particular pieces of that, or it may be that a meeting between my service and their director of service to ensure that we fulfil our duties of disclosure will arise. I would not like to give the Committee the impression that either of us has to agree with what we are doing in our separate jurisdictions. Q267 Chairman: Before I pass over to Lady Hermon you will probably want to answer this question in a general rather than a specific sense but have there been any occasions during your period when the system and the co-operation has not worked satisfactorily? Sir Alasdair Fraser: In general terms the relationship as between prosecutors has been excellent and I have no instance in my mind where I felt or considered that I have been unsupported or obstructed. In earlier days the Committee will be aware of problems that existed in seeking the return of fugitive offenders and in that area there was a considerable problem which in part was met by the legislation to which I have referred. That was more than anything the area in which there was difficulty. Even long before the new arrangements came in extradition was beginning to work more effectively over the years and now we have the European Arrest Warrant that again has simplified it further. That would have been the area that I would have identified. Chairman: Thank you very much. Lady Hermon. Q268 Lady Hermon: Thank you very much indeed, Sir Patrick. It is very nice to see you here, Sir Alasdair, and your colleague. Can I ask you a couple of questions that have arisen from a submission that has been given to us by the Police Service for Northern Ireland, the PSNI. In their submission to the Committee they suggested that the legislation that presently governs the exchange of suspects for the commission of an offence in the Republic of Ireland and vice versa in Northern Ireland and being tried in the other jurisdiction is outdated and should be modernised. Would that be your view and, if so, could you just elaborate on the areas that you would expect see change or would wish to see change? Sir Alasdair Fraser: The basis of the 1975 Act was the conduct of persons involved in terrorism. The Act focused on that and it was unusual in terms of our jurisprudence within the United Kingdom which essentially prevents prosecutions which are based upon the .... Commission in the United Kingdom, so it was an unusual step. There have obviously, as you know, been changes over the years, particularly in connection with children who need to be protected by people who travel abroad from this country, so jurisdiction is not quite the rigid position that it was. This is a difficult issue for those responsible for legislation to consider. I said earlier that there is a strong public interest that offences are investigated where they are committed and are prosecuted and, if convicted, sentenced within that community; it remains my view that that is a strong and potent public interest. Equally I have to recognise that the island of Ireland is small, that on occasions it is as simple to prosecute either in Belfast or in Dublin as the case may be and if it was considered by Parliament that the public interest would be best served by allowing that then there might well be a range of offences which would need to be added to the armoury of offences that exist. The choice of offences would be an issue that would require some consideration. There are headline figures like human trafficking or drugs or sexual offences and I think you are in that area, but the important decision is one of policy which legislators would want to perhaps consider. Q269 Lady Hermon: Could I just then push you a little further for your own personal view. You can decline to give the Committee your personal view but the PSNI have made a submission with suggestions of offences that they would certainly like to see added to the legislation when it is modernised and updated to take account of our modern technology and the exchange of information that can go across borders very easily. Could I just ask you specifically: would you in your view accept or think it would be wise to add - and you have already mentioned some - rape or sexual assault, money-laundering, fraud and, fourthly, you have also just mentioned in passing human trafficking. It is a very contentious area and it is something that a lot of people are very concerned about at the present time. Should those four or any of them be added to the legislation in your view? Sir Alasdair Fraser: It may be that what the police are contending for is based upon their understanding or identification of a problem of which I am not aware. From my perspective as a prosecutor I am not aware of difficulties in sexual offences or drug offences. Fraud is such a generic term that many things could perhaps be identified there but if the Chief Constable is saying that he has evidence that the administration of justice would be improved by extending the extraterritorial jurisdiction I do not have an issue with that subject to my general thesis that there is an important and significant policy issue which is where offences are investigated and tried. Q270 Chairman: When we were in Dublin last week as members of this Committee we met with some of our Parliamentary colleagues on the Justice Committee in the Dáil, and there was anecdotal evidence - I use the word very deliberately - that perhaps there were certain offences where the criminal would prefer to be sentenced in the North rather than the South or vice versa. Is that something that has crossed your view? Sir Alasdair Fraser: I am not being cautious but my experience of sentencing practice in the Republic of Ireland is somewhat limited. I have experience obviously of what is happening in Northern Ireland and it would not come as a shock if potential offenders might have a view on this one way or the other, but I do not think I could second-guess what that view might be. Q271 Stephen Pound: I am very grateful for that. Lady Hermon was pushing you for your personal view and I do not want to trespass too much on that area but the PSNI have recommended simplification and acceleration of the letters of request that were just mentioned. Could we ask your view on whether letters of request should be or could be simplified and accelerated? Sir Alasdair Fraser: Letters of request can be quite complex documents. We send about 38 each year to the Republic, so that is probably 38 separate cases. From our perspective we might be concerned, as no doubt they are, with the speed at which we receive a response. I am not responsible for the investigation in the Republic but certainly I am aware of the complexity of the evidence that is sought from time to time and there may be good reason for there to be some delay, but delay within any legal system is something that we would seek to avoid and if there was a means of addressing delay we would support it. I am aware that the group which was recently set up in 2008 between the NIO and the Department of Justice had letters of request as one of a number of discrete areas which they will be considering and I rather think that they will be examining the concerns that perhaps I am expressing. Q272 Stephen Pound: You motioned that they were fairly complex documents. Sir Alasdair Fraser: Yes. Q273 Stephen Pound: Presumably this is quite a pressure on your side's time to produce these. Do you have a personal view as to whether they could be simplified or do you feel that this is a requirement of the Garda Siochana? Sir Alasdair Fraser: I think this is a requirement. The framework for letters of request is a statutory framework in each jurisdiction. We have to meet the requirements of their legislation and the letters are sent by SOCA I believe - the Serious and Organised Crime Agency - and they are a legal request which is formulated in a rather legal way. It does take a little time but I do not want to undermine something that is working. There is no activity that cannot be improved however. Stephen Pound: I am referring to the PSNI's opinion that it should be simplified but I am extremely grateful for your perception. Chairman: May I bring Lady Hermon back and then Mr Hepburn. Q274 Lady Hermon: We in the Committee have on a number of occasions received evidence from a wide range of organisations and I have to say, speaking as a constituency MP here, from constituents as well who are very, very annoyed and very disappointed with the level of sentencing - sometimes it is a very light sentence and a fine and not imprisonment - for crimes such as tobacco smuggling, cigarette smuggling, fuel laundering and other organised cross-border crime. It appears, certainly to the general public, that the sentences are lenient and the organisations concerned are extremely frustrated by that. I wonder, Sir Alasdair, do you share or does the prosecution service share that concern and that frustration about the sentencing for, as I say, those sorts of crimes across the border. Sir Alasdair Fraser: As you know that is a very difficult question and forgive me if I try and answer as I must as a prosecutor. Q275 Lady Hermon: Yes, of course. Sir Alasdair Fraser: Before we get to the point of sentencing I have a number of responsibilities. I have to ensure that the charges before the judge are sufficient to meet the criminality so that the judge is able to sentence in a proper manner. I have to ensure that the facts of the case are opened fully and fairly. If there is an issue about the facts which the defendant contends then I have to ensure that there is a resolution of that issue and that the court is not misled. I have to inform the court of guideline cases and give such assistance as I can. Once I have done that the ball so to speak moves to the sentencing judge and it seems to me vital - and I am sure everyone would agree - and at the very heart of the administration of justice that the judge must be independent of the executive carrying out this act but he must be mindful of the liberty of the subject and of the proper interests of victims. In a civil society is it for him and for him alone. Like many prosecutors I reach a point where I say sentencing, having said what I have said, is a matter for the independent judiciary. Parliament of course has given a limited remit to the Attorney to refer cases to the Court of Appeal and as a prosecutor my duty is to identify such cases as I think fall within the ambit of that Act. Q276 Chairman: Have you had many occasions when you have advised the Attorney that he should appeal? Sir Alasdair Fraser: Yes, but not in the area that Lady Hermon has referred to. As you know there are very limited circumstances in which the Attorney can refer and the evasion of duty in respect of fuel, cigarettes or indeed alcohol are not such cases. There is a jurisdiction for drugs which was recently brought into play by Parliament but the other three areas of evasion were not included. Lady Hermon: That is very interesting. Thank you. Q277 Mr Hepburn: Have there been any exchanges or secondments between staff North and South of the border? Sir Alasdair Fraser: Not yet. I put into the memorandum that it was a matter that we are discussing. I saw my counterpart before Christmas in Dublin and I raised that with him. We have agreed to look separately at issues of casting and to identify whether an exchange would be worthwhile in terms of advancing the separate work of each office. There is a certain cosmetic benefit but we are trying to ensure that if we go down this road there will be a real benefit to each service. Q278 Mr Hepburn: When you talk about benefits you can think of the obvious ones of making contacts, making people perform et cetera and exchanging good practice. What other value do you think you could get out of exchanges? Sir Alasdair Fraser: There may be an expertise in a certain area of crime which is stronger in one office than the other, there may be arrangements in place in one office which, when they are examined, would be better if they were adopted by the other. I do not think one can put too many limitations on it but I certainly would be anxious to be able to justify to any committee that was scrutinising expenditure that this expenditure was producing something of value for society. Q279 Chairman: It would be your wish I infer from what you have said that although there may be limited value you would like to see secondment. Sir Alasdair Fraser: I certainly would. It is such an obvious way of broadening the experience of prosecutors. We do try and look beyond the island and we do play a part across a number of international agencies. I think it is important that prosecutors lift their eyes and have a broader view than perhaps a view of quite a small society. Chairman: Thank you very much. Mr Pound. Q280 Stephen Pound: You mentioned earlier on the working party that had been set up to draw up guidance for police and prosecutors in Northern Ireland relating to cross-border prosecutions. Has the working party actually made any suggestions where legislative change might be appropriate and can you give us some indication of the practical problems that the working party has established? Sir Alasdair Fraser: My understanding of what has happened - and I have not been at meetings yet of the working group - is that a group of individuals from Northern Ireland and London have met. They have examined or are in the course of examining a number of issues. They include the Home Office lawyers with responsibility for the NIO, they include officials from the NIO, the police and my office. I understand that similar discussions are taking place in Dublin. There have been joint meetings and as to the most recent meeting I am informed that the Garda Siochana produced a draft protocol on the investigation of offences. We are preparing a draft protocol on disclosure issues which we will be presenting at a subsequent meeting and as I mentioned earlier letters of request have been identified. The work is moving very slowly and I was, I think, a little surprised to be informed that there were not at present draft terms of reference for the group, but the areas which I have identified are worthwhile and capable of being productive. Q281 Stephen Pound: Are you saying that it is in effect early days on that but that you will at some stage be able to give us an indication as to whether legislative problems have been identified? Sir Alasdair Fraser: Yes, it is early days but on the positive side it reflects a broad stream of working professional relationships which can be enhanced by this process. From my position I do not see problems or inhibitions; there is a broad groundswell of both goodwill and an intention to advance the investigation of offences and their prosecution which is I hope encouraging. Q282 Stephen Pound: You mentioned disclosure in what you said but what about the issue of third party materials cross-border; is that a concern that you think the working party should consider? Sir Alasdair Fraser: We are moving into an area with which I rather fear you will see I might struggle. Q283 Stephen Pound: You have given no evidence of struggling with anything Sir Alasdair. Sir Alasdair Fraser: Third party disclosure is a matter we are addressing. In simple terms it is something where it is not good enough for me to say to the Garda Siochana "Please show me everything that you have that may or may not be relevant and I will examine it" when I suspect that there may be other agencies of the State who might hold material. In preparing a protocol or memorandum we will have to be careful to ensure that third party disclosure can be addressed in what is a separate country. In broad terms we will have to ask the Garda to provide disclosure to us and through the guards we will have to ask whether there are other agencies of the state who must be asked whether or not they hold relevant materials. We are at an early stage of drafting and there is work to be done. Stephen Pound: I am grateful, sir. We may possibly have to revisit this particular issue some time in the future but at the moment I am extremely grateful. Q284 Chairman: Sir Alasdair, could I thank you very much indeed? Is there any other point you would like to make to the Committee before we end this particular session? Sir Alasdair Fraser: In general terms I was struck by the debate about whether or not there was a need for a further offence in terms of fuel laundering and mention was made of particular offences that exist in the Republic under the Finance Act 1999. It is an interesting offence; it certainly would make the prosecution of, for example, land owners who have rented out a proportion of their premises for the purposes of fuel laundering easier if the presumptions that are built into that offence were ECHR-proof. Stepping back from that I think that perhaps more thought should be given to the policy issues of that type of offence; it is an area that is not without difficulty because of the burdens that may be placed on a defendant but it is an area that is worth examination, at least by the NIO. Chairman: Thank you very much indeed. That is something we will have to look at again because I get the impression that those who were warming to the idea of an extra offence are now rather cooling so we need to take your comments on board and consider them among ourselves. We are very grateful to you. Thank you very much indeed, it is most helpful and will certainly assist us as we formulate our report. If we have any specific questions to come back to you on perhaps you will allow us to communicate with you via our clerk. It really just remains for me to wish you a safe and uneventful journey back. Would the other witnesses like to come to the table? Witnesses: Mr Al Hutchinson, Police Ombudsman, and Mr Jim Coupland, Senior Director of Investigations, Police Ombudsman for Northern Ireland, gave evidence. Q285 Chairman: Could I welcome you both; thank you for coming over and, as I said to Sir Alasdair, we appreciate your making the effort in the slightly difficult weather conditions and we hope you have a good journey back with no problems. Mr Hutchinson and Mr Coupland, we have of course met a number of times in the past and you have assisted the Committee with previous inquiries. We are at the moment of course mainly concerned with the border inquiry but we will be conducting a brief inquiry at least into the Eames-Bradley report and I will want to ask you at the very end one or two questions arising from the publication of that report. If you would prefer to answer those questions in private that is entirely up to you and the Committee would respect that. I just thought I would mention that at the beginning so that you know when we have asked you the questions I do not want to do a John Humphreys on you and suddenly spring something on you that you are not expecting, so when we have asked you questions about cross-border co-operation we will move on to that. Mr Hutchinson: Thank you, Chairman. That is fine, we can do that in open session. Q286 Chairman: That is good; I hoped you might say that. We will of course be seeing Lord Eames and Mr Bradley for a special session later this month. Cross-border co-operation: you obviously heard the evidence that Sir Alasdair gave and you may have heard on radio or television some of the other evidence that we have received over the last couple of months or so. Everywhere we go, both in Northern Ireland and in Dublin last week, and when we were on the border before Christmas, we get the impression of authorities and institutions who are working ever more closely together, of people who are getting to know each other well, who respect each other and in many cases are developing personal friendships. This was very much in evidence in our discussions in Dublin last week. The Committee is pleased about this but nothing in life is ever perfect and we would like to ask you how you might feel things possibly could be improved. You may feel that they could not be and that is all right, we will have a very short session then, but how important is co-operation with your equivalent body in the Republic and with the Garda Siochana and how important is it to you in your work? Mr Hutchinson: Thank you, Chairman and Committee members, it is a pleasure for Jim and I to be here. I would echo your general comments and sentiments that not only in relation to my domain but other relationships between the police and government bodies are very strong in terms of networking and mutual assistance. Certainly our office at the beginning spent a lot of time helping to assist the Garda Ombudsman Commission in setting up their operation, to the extent that we have lost four of our good people to that organisation. Q287 Chairman: On secondment or desertion? Mr Hutchinson: No, secondment is another issue, Chairman. Certainly we are working in that regard but on a personal level and on an organisational level with the Commission the relationships are very strong. Last March I hosted the first co-operative mission we had between the IPCC, the Garda Ombudsman and the Scottish Ombudsman to strengthen those relationships and we have built on it since that time in terms of peer case review, talking about secondments, joint training events and we currently have a member of the IPCC with us on secondment[3] and possibly in the future with the Garda Ombudsman as well. That is the strength of the relationships. Tragically on Monday Jim and I went down to the funeral of Justice Kevin Haugh, the Chairman, and it is mutual respect in those sad circumstances that demonstrates the strength of the relationship with that organisation. To a lesser extent, although we keep a professional distance from the police both in the North and the South we rely on a relationship with the Garda. We have in the operational sense - and I will ask Jim to brief a couple of anonymised cases - issues that can illustrate the legal difficulties in acquiring information from another sovereign jurisdiction. To put it in context, though, my authority of course ends at the borders of Northern Ireland so the relationship is fundamentally not too much different between the IPCC or the Scottish Ombudsman or the Garda Ombudsman in the South when we need to acquire operational information. It is a very good professional relationship, to answer your question, with the Garda Ombudsman and with the police it is professional, but we do run into legal restraints in acquiring information as you would expect in a different sovereign jurisdiction. Jim can brief cases in an anonymised version if the Committee wishes to hear that. It would perhaps give you the context. Q288 Chairman: Just a few examples would help and we obviously accept the fact that you are not going to give us names. Mr Coupland: Both cases actually remain ongoing investigations by the Ombudsman's office so I suppose that technically they would be sub judice but I will anonymise to the extent that I think it is safe to talk about them. Both cases involve death and both have a cross-border dimension to them. The first one raised various issues regarding the conduct, use, authorisations and employment of informants both in Northern Ireland and in the Republic of Ireland and there has been responsibility on the part of both the PSNI and the Garda Siochana. The PSNI have co-operated fully, bearing in mind we do have jurisdiction over them and we have a strong power under section 66 of one of the Northern Ireland Acts which gives us the power to demand and in fact seize material, and in terms of PSNI that law has enabled us to do this. We have therefore had full co-operation there. However, the core issues which have occurred in the Republic of Ireland - where we have no legal jurisdiction whatsoever and obviously section 66 does not apply - are that when we have gone to the Garda and asked them to assist us they have been unable to co-operate. The reason they have given is that it would not be in their interests on the grounds of national security, which from our perspective we would have to respect. The difficulty is that our investigation cannot be fully concluded with regard to the complaints which are against RUC/PSNI without being able to explore the Garda actions or inactions as the case may be. That is one case. The other case involves the exchange of intelligence through an investigation which is actually being run by the Garda; however, the complaint that has been made to the Ombudsman in Northern Ireland is that intelligence has either been deliberately withheld or not passed to the Guards in their investigation. PSNI, again through the legislation we have, have co-operated fully, we have had several meetings with them and seized material, they say various things that they have done, various things they have passed; however, when we have then gone to the Guards they have been unable to give us that information on the basis that it is outwith their jurisdiction. They have a review on-going in that particular case and following advice from their Attorney-General they will not give us information at this period of time. They do say that they will revisit it when their review is completed; however, it is very much like the first case, without that part of the inquiry being complete we are unable to conclude our investigation. Those really are the only cases that involve the Guards that are really worth mentioning. Q289 Mr Murphy: Just coming back on that one would it not be possible for your equivalent organisation in the Republic to ask questions on your behalf? Mr Hutchinson: No, the Garda Ombudsman as I understand it can call themselves in in certain cases but there is the legal transfer of information that we might need if there was the prosecution of a police officer in the North so it has to be done in a legal framework. They are not yet at the stage where they would be willing to do that and the other real benchmark is national security, which is no different of course for the UK jurisdiction. That is within the remit of the Guards in the South and if they say the equivalent Official Secrets Act applies then we are shut out of the jurisdiction. Q290 Mr Murphy: The only point I would make is we of course will accept that, as I am sure you would - if it was a breach of national security with information you held you could not pass that on to the South. However, short of that would it not be possible for the co-operation to extend to as much information as they are able to give, short of breaching national security, could be passed. Mr Hutchinson: The decision-maker is the Garda Commissioner and the Garda Ombudsman run into the same point that we would. Q291 Chairman: Before I bring in Mr Fraser can I just ask you one question for clarification and it is really built upon your own reference to your colleague in Scotland. Would you describe relationships and co-operation cross-border within the island of Ireland as better than or different from or very much the same as your relationships with your counterparts in Scotland and in England. Mr Hutchinson: I would say very much as your latter point. We have had one case involving Scotland where we were denied informant information which is a completely proper and legal decision and operationally an understandable decision, but of course it was outside our jurisdiction. That just illustrates that the problem is not unique to the Republic of Ireland. Mr Coupland: Perhaps I could just mention that the Director of Investigations for the Garda Ombudsman and I meet on a two-monthly basis and about four months ago I actually secured his position on the ACPO Professional Standards Committee which is chaired by the Chief Constable of West Mercia Police, so he now attends obviously from Dublin on a three-monthly basis and has now attended three meetings of that committee. Chairman: That is very good. That is a very practical example of secondment of a sort. Christopher Fraser. Q292 Mr Fraser: In your letter to the Committee you said that in effect a new legislative framework for co-operation would be helpful in clarifying mutual expectations across the border. How can the legislative framework you refer to be improved and what single change do you think is most essential? Mr Hutchinson: A couple of points. I suppose first those would be for the different sovereign jurisdictions to decide what that is. What I am familiar with in Canadian terms and Sir Alasdair to a lesser extent referred to is mutual co-operation. In Canadian and United States terms there are lots of mutual assistance treaties where you can acquire evidence if you will; none of those however trump the two issues that are here of national security North and South, and those are understandable reasons. Even having a legal framework, for example, when Sir Alasdair would request legal co-operation from the South we would run into legally the same remit that if a case is on-going, a live investigation or involves national security from the South that would statute-bar probably any legal co-operation North and South. I tried in my letter to put it in context, the context being two-fold - one is that out of a thousand active cases these are two. Mind you, these two involve deaths so they are on a more serious scale. One has links directly with the past, investigating issues of policing in the past, and the other is related to that issue and informants as well, so they are very complicated and complex issues, each state having to protect their own interests. When I say it would be nice to have I also said in my letter that we have work-arounds if you will in terms of mutual co-operation for 99% of our cases so it is part of the overhead in some ways that we have to expect. If each jurisdiction that decided that they wanted to sum up the problem with legislation they could then move to address it and it would probably be a matter for the Committee to so recommend if they want. Q293 Mr Fraser: And in fact put in place the appropriate protocols with long term guaranteed success. Mr Hutchinson: That would be helpful. I would suggest that as organisations - I cannot speak for the PSNI - certainly the Garda Ombudsman, ourselves and the IPCC we are working on those. We have live protocols with security service operations in Northern Ireland and the Ministry of Defence, so it is possible to have mutual co-operation protocols within a legal framework. Q294 Chairman: You would like this strengthened. Mr Hutchinson: I caveat that by saying it is really a matter for the respective jurisdictions. It would ease my job subject to those caveats but I really have to put it in context that we have two cases ---- Q295 Chairman: Would it be possible for us to have a look at the protocols that currently exist? Mr Hutchinson: We will have to discuss that offline if we could, Sir Patrick, in the sense that I have signed a confidentiality agreement with both people I spoke to. Q296 Mr Fraser: Perhaps you cannot share that information but you could put to us separately in a separate memorandum or note to us what your feelings are about improving protocols. Mr Hutchinson: Yes, I could. Chairman: That would be helpful because we may choose to make recommendations along these lines. In the past on previous inquiries some of your observations have indeed led to recommendations, as you well know. If you can share the protocols with us that would be very helpful; if you wish to share then under terms of confidentiality which would mean what you say would not be printed in our report or directly quoted, that can be done. If that is not possible then something along the lines that Mr Fraser just suggested would be almost equally helpful. Q297 Mr Fraser: Could you add to that ways in which you think the Garda could be assisted in helping you in your work? Mr Hutchinson: I will put that in writing if that is acceptable to the Committee. Q298 Chairman: Yes, of course it is. Again, we appreciate the sensitivities but we are most anxious not only to report on what is very obviously a good situation, a good series of relationships, but if there are things that can make it better, that can guarantee this longevity or whatever, we would like to be able to make those recommendations. What about joint training and secondment? You have already referred to the four deserters. Mr Hutchinson: With respect, Chairman, I would not highlight them as such. I take the long view that it is circular and that we will get experienced people coming back to us at some time. Q299 Chairman: Of course. Can we have your views on training and secondment? Mr Hutchinson: Jim has touched on one aspect in terms of the Garda Director of Investigations now being a member of ACPO. The annual meeting that I talked about, the IPCC is hosting that at the beginning of March again. We have talked about joint learning in terms of shared research, we have talked about joint training, we sit on a joint quality board that the Garda Ombudsman and IPCC sit on; that deals with the accredited training of our investigating officers and until recently was with the University of Portsmouth so the three oversight agencies have established a standard of accreditation. We are sharing in that regard; we went to a joint training session in Dublin that Jim arranged last June and that was very helpful with all sorts of leading edge investigative techniques. That is the level of co-operation that we have and in terms of secondment we currently have an IPCC investigating officer with us who is seconded. We have talked about it with the Garda Ombudsman but we have not yet accomplished that, though I expect it will happen in the near future. Q300 Chairman: Do you find that people are genuinely interested in the prospect or possibility of secondment? Mr Hutchinson: I believe so. Certainly it is my philosophy that we do that and we are just in the process of seconding one of our officers to the Prison Ombudsman in Northern Ireland where fledgling investigative agencies if you will need some investigative skills. This office has had over seven years of building that so I take very much the holistic view that we have an obligation to share that expertise and the training. It is a very live, on-going thing but it is a committed philosophy of all organisations involved in policing accountability. Chairman: Are there any colleagues who would like to come in on this? Q301 Lady Hermon: Thank you, Sir Patrick. If I can just take a more general sort of view, I know that the office of the Police Ombudsman in Northern Ireland has been well-established since 1997, was it, when the legislation came in? Mr Hutchinson: That was Dr Hayes' report, yes. Q302 Lady Hermon: The Garda Ombudsman Commission is relatively young and youthful. In terms of the legislation and the powers of each of the respective ombudsmen in the jurisdictions of the Republic of Ireland and Northern Ireland, was the text largely taken from the Northern Ireland legislation? Was that the basis for the Garda Ombudsman Commission? Mr Hutchinson: I think it was in principle but I would not hold myself out as an expert on the southern legislation if you will. In general terms I certainly do not think it is robust as ours. You may well know that we have gone through the five year review and it is out for consultation now. The 2000/2003 legislation involves what extra powers you may need as an agency and the Garda Ombudsman are going through that process. I know that late Justice Haugh already recognised weaknesses in their legislation and I think he was moving for different amendments. Q303 Lady Hermon: If I can push you a little bit further then what are the major differences between the powers that the Ombudsman would have in the Republic of Ireland compared to yourself? Mr Hutchinson: Jim is probably in a better position to answer than I am. Mr Coupland: There was a change in the police regulations in 2001 which gave the Ombudsman power to look into exceptional matters in Northern Ireland; my understanding is that that is not analogous in the Republic of Ireland. There is an ability to look at past cases but it has not been done to the extent that it has been done in Northern Ireland. As you are aware we look at historic deaths but that is not replicated in the Garda Ombudsman Commission and my understanding is that they do not have the same basis in law to investigate the past. That would be for me one of the major differences. Q304 Lady Hermon: Thank you. Could I just also ask then, just following on from that, does the Garda Commission in the Republic of Ireland have the power to initiate a thematic investigation into the Garda or an individual case, or must it follow and only follow up a complaint against a Garda officer? Mr Hutchinson: I cannot answer that. Mr Coupland: I think that is exactly the same. The Ombudsman in Northern Ireland has very restrictive powers; we can only investigate police officers and we only have a power of arrest in respect of police officers. If there is a non police officer involved we are restricted and the point Mr Murphy raised earlier, could we get the Garda to act on our behalf in the South on a case, if you turn that round and that was in Northern Ireland and the guards asked us to do it, we could only do it where there was evidence of misconduct or criminal acts by PSNI officers. If there were not we would simply have to turn around to the Garda Ombudsman and say we would love to help but unfortunately under the legislation we have we cannot. Mr Murphy has left now but that is quite an important point to remember. Chairman: A quick question from Stephen Pound and then I would like to move on to Eames-Bradley if we may. Stephen Pound: Before we move from serious to seriously the Rt Hon Member for Peckham, the Leader of the House, has taken to referring on the record to your role and the role of your equivalent office as Ombudspersons. This has caused grave distress to the honourable gentleman, the Member for Rutland, her shadow. Chairman: And to the Chairman of this Committee. Q305 Stephen Pound: And others. Have you had any representation from anyone in Northern Ireland asking you to look again at your title? Mr Hutchinson: The short answer is no but I received similar umbrage from Dame Nuala O'Loan when I referred to her as an ombudsperson early in my days. Nuala duly corrected me. Q306 Chairman: The ombudsman is alive and well and kicking in Northern Ireland. Mr Hutchinson: Indeed it is. Stephen Pound: I shall pass that on to the Leader. Q307 Chairman: Quite right. I think we must tell Mrs Harperson. Thank you very much for your helpful comments about the cross-border co-operation. Are there any points that you wish to add to the evidence that you and Mr Coupland have given on that subject before we move on? Mr Hutchinson: No, Chairman. I just want to emphasise that co-operation is very good and is certainly growing. We are working on it and working with the legislation we have. There are really no major obstacles. Q308 Chairman: Could I point out that just as you are Ombudsman I am the Chairman. Mr Hutchinson: Thank you, Chairman. Q309 Chairman: Eames-Bradley. You will remember that when we saw you last it was actually the publication of our report into policing in the past, and we were very careful because we did not wish to pre-empt Eames-Bradley and we tried to be sensitive - I think it was generally accepted that we were. Inevitably that left a few areas where we felt we would have to come back and later this month we are seeing, as I mentioned to you, Lord Eames and Mr Bradley and we shall be conducting a brief inquiry into the report and recommendations and making our own comments on them. We would be tremendously helped by you this afternoon - and it may mean we would not need to trouble you to come and give evidence again on this subject to us - if you could just share some of your thoughts on the report published last week, in particular of course the recommendation that affects you, namely the establishment of this Legacy Commission, which would appear on the face of it to chime in with your own points made to this Committee that you were in danger of being overwhelmed by the past and therefore unable adequately to do your own job with regard to the present. We would welcome your views on this. Is this the sort of answer you were seeking and we would also, all of us, be very interested in your reactions to the one recommendation that appears to have taken over the headlines, which is rather a pity because there were many recommendations in the report, namely this extraordinarily-named "recognition payment". Could you share some of your thoughts on these points with us? Mr Hutchinson: Perhaps, Chairman, I can dispense with the last point first. I really do not think it is my place to comment on the recognition payment, I will leave that for the community that is affected and certainly the political figures as well. I hope you can respect that particular point as an official. Q310 Chairman: Of course. Mr Hutchinson: Relating to the rest of the report I have given it publicly my general endorsement. The concept in three aspects in terms of the strands really fits what my concept was of a possibility. One is that dealing with the criminal investigation and dealing with my specific role of allegations of police wrongdoing I really do not have to rehash the impact it has on us but I would just point out that currently we have over 120 deaths where there are allegations of police wrongdoing - and they are just allegations. We can only deal with four or five maximum in a year so projecting that forward it takes a long time. We have enough money for 13 staff to investigate those out of our current 109 investigative staff and, as I pointed out to the Committee previously, it is not sufficient money because I am actually dragging the resources of the present to deal with the past, and they are very complicated cases. The tragedy as I have said, and I believe, is that we hold out hope and expectations to victims that we are going to solve something; in fact in a lot of cases we have demonstrated that the police did no wrongdoing in terms of the context and where they did or possibly did there is loss of evidence, failure to co-operate by the retired officers - they are very complex cases taking multiple years. It is very difficult and so I was certainly looking for a different way to deal with that and I think the Eames-Bradley suggestion offers hope for that. The Enquiries Team have scoped and we are in the process of scoping where there is evidence and where there is not evidence in the multiple cases we have and we are able to move those probably quickly through the regime in saying there is no hope or possibility of evidence and we can move those on to an information-gathering session. The merits of that and the details of all of these would have to be worked out by Government. Getting information is important to some people to deal with that, but moving beyond that to another strand of reconciliation is a hopeful move as well. The five-year limit - when I met the committee I said that is probably being optimistic in terms of that but I do agree with the principle of closure. I would not be in a position to put a timeline on it but I suspect it would be more than five years. That part is therefore okay. Perhaps for society the advantage of a thematic study is for me the kind of strength of the recommendations depending on how it would be handled. The role of informants in society in a period of conflict or war, depending how it is called, could be important to lay some myths to rest and discuss the pros and cons of using informants in society from all sides. It is damaging the truth or indeed can be damaging - Dennis Bradley or Lord Eames said that as well. That offers some hope. Broadly speaking I gave it my general support and leaving aside the issue of the recognition payment which I will leave to others the framework is good. I cannot speak about the mathematics of it because their costing of £100 million for HET and ourselves over this same period of time seems large, larger than I can see at the present time, but I have not queried that subject with them. Those are, Chairman, my general comments. Chairman: That is very helpful and of course we fully respect your - in the nicest possible way - evasion of the recognition payment question where you do not feel it is appropriate for you to comment. This Committee will have to comment on that and obviously we will do so in due course. Are there any colleagues who would like to come in on this? Q311 Lady Hermon: May I just take Mr Hutchinson back to the five-year limit. Surely one of the firm recommendations from Eames and Bradley is that there has to be a finite amount of digging into the past and five years is what is recommended for the Legacy Commission. I have listened very carefully; you have over 100 cases of alleged - I stress the word alleged - police misconduct and you reckon that in fact you will get through about four or five per year. You hinted that you felt the five years would not be sufficient for the Legacy Commission; do you have an idea in your head or will you be submitting an alternative recommendation of a lengthening of that timescale? Mr Hutchinson: The report as I recall reading it says that they thought the Commission could start by the end of 2010 with obviously a lead-up time. If they hit the ground running in 2010, given the volume of cases and moving the evidentiary cases and the possible criminal productions through, combining the resources that we have plus the Historic Enquiries Team - do not forget I have a case with the Northern Ireland Office for 46 more people and £3 million per year because I thought it was important to get that into that public domain and give out the information that that is what is required just to deal with the police complaint aspect as well. Somewhere you can rationalise all those numbers into an appropriate number. In our office I am still dealing with quality aspects but it has taken the office really eight years to build up its quality level of investigation. Starting running, getting Article 2 compliance - in other words independent and impartial investigators to fit into that - is very difficult, so there is the whole human dimension of recruiting, retaining staff, having all the evidentiary and legal mechanisms to investigate. I think it is being optimistic in terms of the start date probably after the Government has appropriately reflected and made their decision; then you have to hit the ground running, so I think the first year might be lost. A more direct question is how long it would take. My analogy is as Oversight Commissioner in the Patten Reforms where there were successive appointments and continuations of the role and essentially it was our office that had to say we are sufficiently there that we can start. These things therefore breathe a life of their own; I adopt the concept of a finite time but I am thinking practically it would be more like seven years. Even that is a guess but what I suggested to Eames and Bradley when they were consulting was that they should have a finite period of time and one limited extension so that it does not go on forever. I would hesitate to say that there is a magic number - they have picked five and it is a good starting concept but it is possibly naïve to think that it could all be finished in five years because you have to move everything all the way through. Chairman: Our acquaintance with the subject in our last inquiry does indicate that this is a very difficult one. We would all agree that there does have to be a limit, it is a question of what is the realistic one that reconciles so many conflicting interests. Thank you for those initial reactions; it may be that we would want to come back to you either for some further written comments or some oral ones but we do appreciate your presence this afternoon. We wish you a safe journey back and thank you very much for coming. [1] The 18 cases were in respect of 28 persons. [2] Consideration of source material in conjunction with the Attorney General's Office has revealed a further 4 cases in respect of 9 persons identified. This means that a total of 22 extra-territorial cases have been brought under the Criminal Jurisdiction Act 1975, in respect of 37 persons. [3] Note by witness: Unknown to me at the time, the individual has actually now taken up one of our full-time posts to our benefit and probably detriment of the IPCC. As it turns out my testimony that you need a long view of these things (we lost 4 capable Investigating Officers to the Garda Ombudsman's Office) has turned out to be correct. |