Select Committee on Northern Ireland Affairs Minutes of Evidence

Examination of Witnesses (Questions 300-323)



Mr Barnes

  300. In the memorandum that you submitted to us, when you discussed the police information on intimidation, you point out that this covers not just paramilitary and terrorist activity but it covers general criminal offences, so it is not easy maybe to work the figures out. Is there, in your own experience, a spread that exists between these two areas; is the fact that there is a culture of paramilitary and terrorist intimidation liable to lead on to there being intimidation that is then associated with other purposes and general criminal activity?
  (Miss O'Mara) I think, in fact, this is one of the reasons why the previous Secretary of State set up this Organised Crime Task Force, that was being directed at much the same sort of thought. In fact, what was concerning our Ministers was something they have often talked about, a Mafia culture and they are concerned that, very often, people who are engaged in one kind of activity may then spread out into other kinds, which is, I think, what you are talking about. And one sees it in the case of, by no means the only one, the loyalist groups where we have seen drug-dealing, and so on, going on, and it is sometimes quite difficult really to decide what is what, and whether these things are being undertaken for paramilitary reasons or actually by individuals getting into sort of a thuggish and criminal sort of activity. So I think we do see a read-across. And it is difficult to know—it is sort of chicken and egg, really, I think, as to what comes first—whether it is that there are people who, in another culture, might have just gone into straightforward crime but are being dragged into paramilitarism, or whether it is because they have come in through the paramilitary route and have then got involved in organised criminal activities. I suspect that it is probably going in both directions.
  (Mr Leach) Yes. Although it is not exactly the same point, it is perhaps worth mentioning that the Criminal Justice Review, which was published last year, does make very radical proposals for new arrangements for community safety in Northern Ireland, that is efforts, to reduce crime and the fear of crime through local partnerships, but also through a sort of strong, central impetus and guidance. And arrangements were put in place in England and Wales through the Crime and Disorder Act in 1998, but in Northern Ireland it is fair to say there has been a sort of patchwork of different initiatives, different responsibilities, but nothing really pulling it together. And so the Review recommended an overall Community Safety Strategy, new local structures which would help to deliver that, and very much build a sort of partnership approach at local level, including the police but including other agencies and voluntary agencies, in order to reduce criminality and to reduce the fear of crime, including intimidation. And, of course, the growing acceptance of the police by communities, working with the police, is a very important element of that. The Government has generally endorsed the recommendations of the Review, but it has not yet announced detailed decisions, but it is planned to announce those fairly soon. And, in going forward on the community safety track, I hope that we would be able to make a real difference at the local level and start to fill a gap that has been there and has perhaps, to an extent, been in-filled by local hoodlums and other influences that we would want to eliminate.

  301. I suppose there are two areas. There is what might be described as paramilitary plc, that people move away from something that has claimed political justification for what is being engaged in, to just outright crime activity, but they come out of the same camp, as paramilitary intimidators; and then there are those that it will just spread to, generally, that it creates an easy culture around, that this is the pattern that you follow, from others that are engaged in it. But maybe I could turn to the paramilitary justifications that are sometimes given for intimidation, where the argument would be, often, that there is petty crime, vandalism, joy-riding, that is not picked up by the police, and therefore they move in, in order to exercise their own crude form of justice and execution, in those sorts of circumstances. How is that being tackled, how is the Government trying to contain those areas?
  (Mr Leach) I think I might mention again the Community Safety Strategy, which is meant to provide an effective forum for local people, real community representatives but also statutory agencies and the police, and the willingness of communities to work with the police is very important in this, to build a forum in which those fears can be expressed and action can be taken. And I think that the community safety concept goes a little wider than just crime prevention; it would mean designing out crime. If there were continuing problems around because of a particular car park, or because of the confluence of particular school buses, that sort of thing, you would be able to take action because you had the agencies there to resolve those problems, and therefore stop what is perhaps more anti-social behaviour than crime—but that would lead to a more positive culture within the community. There is, separately, the proposals the Government is bringing forward, well, I should say, the proposals in the Criminal Justice Review, for the introduction of a system of court-based, restorative justice, conferencing, for young offenders, which would provide a much quicker and more flexible way of dealing with relatively low-level juvenile offending. And, I think, as you say, it is frustration, that it often takes a long time for the system as it is currently to resolve those cases, that can lead to the paramilitaries gaining some credibility, because, in a very repugnant way, they can claim to take care of those offences. So I think the two things work together in the Criminal Justice Review. There is the Community Safety Strategy and the approach there, and the introduction of restorative justice arrangements, which should not be confused with the community restorative justice schemes, which are run by groups on both sides of the community, but perhaps particularly in nationalist communities, and they are groups which refuse to recognise and work with the police and, to an extent, are trying to establish an alternative criminal justice system. But we are trying to bring in arrangements which would provide effective, expeditious and fair and inclusive ways of dealing with young offenders, and at the same time building a real community partnership spirit and addressing anti-social and criminal issues. So I hope that, subject to the Government's detailed decisions on the Criminal Justice Review, and the rolling out of those, we will be able to make progress in the areas you pointed to.

  302. If maybe I could clarify action and initiatives that have been made in reducing petty crime and prosecuting offenders, because there is that distinction we have talked about, about that which is paramilitarily linked and that which maybe is more general. The avenues that you have talked about, on restorative justice, the Community Safety Strategy, earlier mention was made of a National Confiscation Agency, how do these fit in with that type of pattern? Are they being directed generally to all petty crime and prosecution of offenders, or do they have a paramilitary, intimidation focus involved with them?
  (Mr Leach) They would all have a general focus, I think. The National Confiscation Agency, and those proposals, of course, are targeted at organised crime, it is really the upper end of the spectrum. And perhaps it is worth saying that that is legislation which is being taken forward by the Home Secretary, though it will, of course, apply to Northern Ireland, we are involved in that, and I believe it is hoped to publish draft legislation fairly soon. The community safety and restorative justice approaches would be designed to cover not specifically at all crime with a paramilitary connotation, but ordinary crime which, however, under the present arrangements, and given the particular difficulties with the people being unwilling to work with the police, may cause a lack of confidence in the established criminal justice system. It is designed to fill that confidence gap, to provide more effective and inclusive resolutions of issues which are worrying the community, in a way that is acceptable and in a way that, we hope, will mean there is much less resort to paramilitaries, and paramilitaries have much less purchase on the community in those areas.

  303. I will open up a new avenue of questions that others might follow, in terms of compensation provisions, there is the Criminal Injuries Compensation Scheme and the Criminal Damage Compensation Scheme. What proportion of people who have been intimidated from their homes succeed in claiming from one or both of these statutory compensation arrangements?
  (Mr Brannigan) In fact, I can only give you approximate figures, Mr Barnes, in relation to the schemes as a whole, not in particular in relation to intimidation cases. In general, if someone makes a claim under the Criminal Injuries Scheme, that is injury to a person, 60 per cent of people who claim in such circumstances actually succeed in getting compensation. It is a much higher percentage in damage to property claims, because it is probably much easier to see and confirm that the damage actually has been committed.

  304. Is there any type of pattern for those who do not succeed, is there any type of shortcomings in applications that are made? I know that people may use solicitors, etc., in connection with it, and it might be that they have got a better chance if they have got a solicitor?
  (Mr Brannigan) Yes, in fact, the vast majority of applicants, under both schemes, who claim, do so with the assistance of a solicitor and, indeed, where there is criminal damage, they have also other professional advisers, such as loss assessors, etc. I do not think there would be a single, major cause of people not getting compensation, but generally what would be the difficulty is that, if we go back to the current cases under the criminal damage scheme, the difficulty people who were being intimidated from their homes will have, and particularly where they have left without managing to secure the property, is that other parties may have come in subsequent to them leaving and have destroyed the property, or misappropriated the property. Their difficulty is in vouching their loss. That is essentially the difficulty they have. It is not that they will not succeed in getting compensation but they will have difficulty vouching, to a reasonable extent that, in fact, they did sustain the loss that they are claiming.

  305. And there might be other sorts of problems; there is the length of time that the claims might take and the position that the intimidated people find themselves in, and if people have fled then that might just be left as being some horrible water under the bridge that they never make applications for?
  (Mr Brannigan) Just coming back to an earlier comment when we were talking about the possibility of under-reporting. That very much did happen at the beginning of the Shankill incidents. It was several months before we would have had the initial documentation from the applicant's solicitors, because the victims were frightened to give their new address, and so the progress on the claims was particularly slow. Also, from the Agency's point of view, we need to go and see and confirm the damage, and it was difficult to confirm the damage when we did not know where the applicants were, and, to a great extent, they did not know what had happened to their property.

Mr McGrady

  306. Could you confirm that persons who are alleging intimidation, who have not suffered physical injury, are almost certain to fail in their application for compensation? And, if that is so, has the Government any intentions of expanding, or developing, the area of compensation to include those who have been intimidated but who have not suffered physical injury?
  (Mr Brannigan) The rules on the non-physical injury, Mr McGrady, are that the applicant has to have been present when the incident took place. That is a particular difficulty if we are talking about some of these intimidation incidents which have occurred when a telephone call was made. It is debatable whether or not the person was present at the time. They also have to have sustained a serious and disabling mental condition, that is one of the strictures contained in the legislation. It is not the fact that you have been involved in an act of intimidation, what we are trying to measure is the consequences upon you of that incident, and very often that will not be manifest for quite some time. Our general rule of thumb of gauging whether the person has suffered a serious mental and disabling condition would be the number of times they had to go to their GP, or, indeed, if they had to have psychological counselling, or if they had to take drugs, etc. People will only succeed in getting compensation for non-physical injuries whenever they are able to satisfy those tests.

  307. Would it be fair to ask you how many successful claims there have been in the category that you have just described?
  (Mr Brannigan) I am sorry, I do not have the actual figures. My feeling is that people generally have the fortitude to deal with the minor incident and put it behind them relatively quickly. If they proceed to make a claim, with no probability of getting compensation for at least a couple of years, those psychological cases tend to succeed, because the people have been suffering quite severely. The evidence is that people will be able to show that they who sustain physical injury, get through it much quicker, the serious psychological illnesses take much longer to resolve, and, indeed, tend to succeed for that reason.

  308. I understand there is a requirement for claimants both under criminal injuries and criminal damages to have full co-operation with the police in the pursuit of their particular claims. Does this make it very difficult for cases of genuine intimidation, who have a problem in that respect, to have their case processed to success. Are they treated any differently from other cases?
  (Mr Brannigan) The test of reasonableness comes into it; all applicants are expected to assist with the apprehension and prosecution of the offender, but, in many instances, the offender, particularly in cases of intimidation, will come masked, they will not be known. But I think it is the general assumption that where you can give evidence to the police of who the offender is, the expectation is that you will make reasonable attempts to help with the prosecution of that offender.

  309. Does it make a difference who makes the interpretation?
  (Mr Brannigan) Initially, the Agency would make the interpretation, and, if our decision is not acceptable to the applicant and his adviser an appeal can be pursued. All our decisions are reviewable on appeal to the county court and higher. I must confess, it tends to be a subjective test, taking all the circumstances into account could the claimant reasonably be expected to be able to identify the offender.

  310. I think you used the word I would have used, it is a subjective judgement, very much so?
  (Mr Brannigan) It is, indeed; yes, indeed.

  311. I am just interested that the Probation Board for Northern Ireland have indicated that they have stopped making referrals to the Base 2 project, on the basis that it is a practical fact that it could appear to give some support, either tacit or tangential, to the victimisation of people, and therefore give some credence to the paramilitaries in their operation. Do you share their concerns in that respect, or do you think it is a good thing that they have adopted this attitude, or not?
  (Mr Leach) It is correct, I think, that they no longer have an involvement with Base 2, because of concerns that that might sort of facilitate paramilitary coercion, and I think now they become involved in these situations where the individual who may be under threat, being intimidated, is under the supervision of a probation officer, and in that case, necessarily, they do become involved. I think I would say that the increasing effort, as we would see it, of the criminal justice system, is not to facilitate relocation but to attempt to deal with the causes of the problem. So that, if someone is under threat because of alleged criminal activity or other anti-social behaviour, the attempt should be made to get that person into a programme which would address the issue through that intervention and would mean that the threat would be lifted; and if there was an immediate threat which needed a response, then there are options there. For example, if someone is on a probation order then they can be breached and taken into custody, if someone is on bail they can get off bail, and so on; there are initiatives which are designed to achieve this. There is a community reintegration project, which I believe NIACRO may have mentioned to you, they are managing it with Government support and involvement of the Probation Board, which is an attempt to address the causes of community concern about an individual, and focuses on maintaining people in the community rather than facilitating their departure from it.

  312. The Probation Board indicated also, I think, that they were greatly concerned about the slowness of justice, whereby people in breach of probation orders, on the streets, because of the continued "anti-social behaviour", become the victims of the paramilitaries to a higher degree maybe than other people. Is there no methodology by which this gap in the Probation Service and the decision-making can take these young people into proper care, custody, or whatever it is, to take them off the streets?
  (Mr Leach) The restorative justice approach which the Criminal Justice Review recommends would provide a much quicker method of disposal in respect of juvenile offending, and also a more inclusive one, in that the conferencing system would include the agencies, it would include the supporters of the victim, if the victim wished to attend, and it would provide, we hope, not only a speedier outcome but one which, as it were, the community would be more satisfied with, as resolving the aftermath of the offence. And, rather than someone doing something and perhaps being arrested and then nothing being heard of it in the community for 18 months until there was a court hearing, this would be a more inclusive approach, which would, we hope, not only reduce offending but also would reduce, as it were, community antagonism to the offender, which might then result in some sort of paramilitary intimidation or attack.

  Chairman: I have supplementary questions, in the light of the most recent answers, both from Mr Beggs and from Dr Palmer. As I have no way of knowing what their supplementary questions are, but as both the chronology with which they indicated to me they wanted to ask and in alphabetical order comes out in the same order, I am not, in any way, precluding Dr Palmer from asking a question, but I am going to call Mr Beggs first.

Mr Beggs

  313. Thank you, Chairman. In your memorandum, it states that a "Notice of Intention to Claim Compensation" form is to be completed and sent to the Compensation Agency, the RUC and any other interested parties within ten days of the incident. Bearing in mind that families sometimes literally flee for their lives, the last thing on their mind is picking up a form on the way; maybe they have to travel a considerable distance to get shelter and comfort with their extended family, and we want to see every genuine victim receiving compensation to which they are entitled. I notice that over 59 applications, in respect of the Shankill, were unsuccessful, for a variety of reasons; has anyone been denied compensation because they failed to get in this Notice of Intention in ten days, or is there sufficient commonsense and flexibility to enable circumstances to take account of late applications?
  (Mr Brannigan) There are statutory time limits for various stages of the processing of the claim; one important one is that, both under the criminal injury legislation and under the criminal claims legislation, the matter must be reported to the police. You can see the reason for that. The serving of the Notice of Intention, which is the preliminary form simply sets out "I've sustained injury/damage", but, if necessary more important, under both schemes, is the serving within time of a Notice of Application. But, I think, for all intents and purposes, you have a year in which to make a criminal damage claim and three years within which to make a criminal injury claim. The time limits are subject to discretion; and, again, if the Agency does not apply its discretion correctly the courts on appeal can review time decisions as well. In all honesty, time limits are not usually a difficulty. They can be in some cases, when we are getting to the year after the incident, as far as the criminal damage claim is concerned, or when it is close to three years after a criminal injury incident. But, for the type of case that we are discussing now, it really should not be a problem.

  314. You will be aware that, a few years back, there were very large numbers of fraudulent applications for trips. Are you satisfied, or has there been any evidence to suggest, that perhaps circumstances have been created for the purpose of enabling claims to be made for compensation for criminal damage?
  (Mr Brannigan) To deal with the criminal damage case, first of all, I think I mentioned earlier that the difficulty that the applicants have in finding sufficient material to vouch their loss. For example, we cannot take the situation where a householder will supply us with a list of house contents and say, these were lost, or destroyed. We have to take, frankly, a pragmatic approach. We cannot simply deny the claim on the basis that there is no evidence that the applicant's property was damaged. We take, I hope, what is a commonsense approach, but bear in mind that it is public money which we are discharging, and in that respect we take every safeguard to ensure that we pay compensation only really when, in fact, the person is entitled to it. As far as criminal damage is concerned, invariably, the remnants of the property, in some form, will be produced. The matter is somewhat more difficult as far as the criminal injury claim is concerned, it is not so difficult if, as a result of the intimidation, you have been struck and you have sustained a physical injury, that will be confirmed by your solicitor sending you to see a doctor who will provide a medical legal report, so that is confirmed in that way. The greater difficulty, it is a limited difficulty really, is that people can sham the fact that they are suffering from a psychological illness, and that is why we have to be sure that it is indeed a serious and disabling mental condition. At this stage, the Agency is not really near to resolving that type of case arising out of the Shankill intimidation; it will be some way down the line before we do that. To answer your question, we take every reasonable step to prevent fraudulent claims but we have to remain aware of the terrifying situation.

  315. I would hope that the good Lord would not follow on with his own judgement for fraudulent claims. Can I ask how it came to be determined that, if the amount of compensation payable is less than £1,000, in the case of criminal injuries, no compensation is paid, and the amount of compensation payable must be at least £2,500, in the case of non-physical injury?
  (Mr Brannigan) I am not absolutely certain, but I believe there are historic reasons. I think it goes back to the time in Northern Ireland when there were many thousands of claims put in for nervous shock caused when people had been walking by a building when it had been bombed. It was very difficult to make realistic assessments as to whether a substantial injury or minor psychological injury had been sustained.

Dr Palmer

  316. My question follows on, actually, from one of Mr Beggs's, and also the very helpful replies earlier by Mr Brannigan. Accepting, as Mr Brannigan says, that psychological effects of some kind of trauma of the kind we are describing often can only really be verified and only developed to the full extent after a period of time, is there not a risk that the process will put the applicant in something of a dilemma because of the time factor? So that, on the one hand, he, or she, has to apply within this, normally, two or three-year time limit; on the other hand, if he applies too early there is a possibility that it might be turned down, on the grounds that it is really too early to say that lasting damage has been caused, and then he will not be able to claim again later, once it has been turned down, I think. On the third hand, if he waits until it has developed then he is sort of running right up against the deadline. So is not this all going to put additional pressure on him?
  (Mr Brannigan) I guess it would do. One of the safeguards against that is that all applicants are paid their legal costs, and one expects them to rely on the advice given to them by their legal representatives, which could be, and this is what is absolutely crucial, not settle at the early stage, because the psychological injury must have completely resolved. Settlement at too early a stage is not in anyone's interest, because, regrettably, the claim cannot be reopened after it has been resolved. So there is a happy medium there; and the pressure is on the Agency, as you can imagine, to try to resolve the matter as quickly as possible, but, by the same token, we hope that the applicants are taking the independent advice of their legal advisers.

  317. Might there be a case for adjournment, in some such cases, where the original application was put in before the deadline but both parties agreed that the matter should be resolved after a further year?
  (Mr Brannigan) I do know of some tragic cases where, indeed, that has occurred. It is not the period within which the claim has to be resolved, it is the period within which they claim; the clock stops from the first days. But I had experience of, I think it was last week or the week before, a very substantial claim for psychological injury, and that indeed did happen, time was marked for a couple of years until the true position was assessed.

  Chairman: The course of events has produced a further supplementary question from Mr Barnes.

Mr Barnes

  318. If I am correct, I understood, from what Mr Brannigan said, that, although there was a considerable period in terms of dealing with the compensation claims, one requirement was that it should be reported to the police within ten days?
  (Mr Brannigan) Yes, that is right. The reporting periods are different under both schemes. Under one, the requirement is to report it forthwith, or within 72 hours, unless there are circumstances, unless there are good grounds for not doing so, and that is looking back into the subjective nature of the schemes.

  319. So, certainly, in many cases of the type of intimidation that is getting someone into exile and suddenly disappearing into Britain, then that proviso, as to why there were good reasons for it not being done at that particular time, must have to be stressed quite strongly?
  (Mr Brannigan) If we are talking about a criminal injury claim at the three-year point after the incident, that is absolute and cannot be extended, either by the courts or by the Secretary of State. But I cannot envisage, in any circumstances, it would not be possible, at some stage, even to put in the preliminary Notice of Intention within that period to keep the claim open.


  320. The appearance of the Minister's name on the screen means really we are about to have another division; if we do, I shall bring these proceedings to an end. But, without in any way engaging in self-indulgence, I do actually have one or two questions I would like to ask, if the Minister, downstairs, allows me to do so. The first is, are you conscious of any previous study, a comparable study to our own, on the scale of the problem?
  (Miss O'Mara) I am not, personally, are you Stephen?
  (Mr Leach) No, I am not.

  321. If not, as you have indicated, why do you think that calibration has not occurred?
  (Mr Stevenson) If I may venture a response to that. In terms of the victims issue in general, it seems to be the case that until we had the ceasefires, people did not really think about the issue of victims too much, people were coping, they were perhaps even in some denial about what was going on in Northern Ireland; and I think, in terms of the intimidation, that might also have been the case as well. And only since the ceasefires and the political process have we begun to look seriously, I think, at the individual needs of those who have been affected, and I suspect research into some of the issues has found in that respect as well.

  322. I am grateful to Mr Stevenson for that surmise, more than surmise, about why it might have been. Serendipitously, he has led into what was going to be my next question anyway. The statistics we have seen in the past, from others, have indicated a markedly different pattern for paramilitary activity during the first ceasefire to the one that immediately preceded and followed the Good Friday Agreement. Assuming that there is a disparity between them and there is a difference between them, the only evidence we have been able to detect so far as to why that disparity, difference, differential, has occurred, amounts simply to testing the water, of seeing what people can get away with. Now, if you accept the premise, and, I agree, I am not putting questions statistically or qualitatively to you, but I am simply rehearsing previous evidence we have been given, do you think that the interpretation of why the differences occurred is accurate?
  (Mr Leach) My own view, Chairman, would be that there is, perhaps, on the Republican side, a relatively steady level of intimidation, and I would need to consult the figures in respect of other crime, but in intimidation, I think, it is fairly steady, but continuing. Whereas on the loyalist side it has a number of peaks which would have affected the figures, and one thinks of the annual Drumcree events, in particular, perhaps 1996, 1997 and 1998, as involving a considerable degree of intimidation, including of police officers and members of the security forces. And then the recent Shankill feud I think would have had a considerable effect on the figures, that would have been a spike as well. But I do not think I can speculate further than that.

  323. If you had any further thoughts on those statistics, it would be interesting, actually, to see what your thoughts were; and if it turns out that the premise is accurate, and I leave aside the underlying reasons, which Mr Leach has alluded to, do you think that that ascending level actually is serious, and, secondly, what do you think are the prospects of curtailing it?
  (Miss O'Mara) To the extent there is an ascending level, of course, we would regard that as serious, there is no doubt about that. In terms of the prospects of curtailing it, I think I would point back to what we were saying about structural reform of the police, all those things. One does not want to look for pie in the sky, but, nonetheless, these things are being done for a reason, community policing we regard as important precisely because it will achieve these results, we hope. When we think about some of the other issues that we have mentioned, the reason for taking forward all this action against organised crime is hoping to achieve changes there. So we are hopeful that these things will produce some results. But, equally, we are not pretending that we are going to do it overnight, because I think a lot of these things we view as long term.
  (Mr Leach) Yes; and perhaps just to add to that. As Margaret said, with the changes in policing, and I do think a very key element in this is going to be the willingness of those communities to work wholeheartedly with the police, with the Northern Ireland Police Service. But, along with that, there are the changes in the criminal justice system, the much greater focus on community safety at local level, in an integrated way, with an overall strategy, central guidance and dynamic but local structures, restorative justice arrangements, which will, we hope, bring a more effective and inclusive way of dealing with minor crimes, and therefore increasing community confidence. Other changes, which I have not mentioned, such as the removal of the prosecution function from the police and expansion of the DPP's Department into the Public Prosecution Service. All those taken together, I think one can discern the possibility of a sort of virtuous circle, which would lead to a really significant transformation in the situation. But any of those elements could go wrong or could perhaps not be implemented with quite the positive results we hope. But I do think the policing changes are the key one.

  Chairman: Thank you very much indeed. The range of supplementary questions which have been asked from different corners of the room are themselves an index of how much we have appreciated your evidence, and the fact that it has stimulated and provoked further questions that had not been perhaps in people's minds before the evidence session began. We are much in your debt. Thank you very much indeed.


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