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Column Number: 071
Standing Committee D
Thursday 1 April 2004
(Morning)
[Mr. Joe Benton in the Chair]
9.10 am
Clause 5
Duty of Director of Public Prosecutions to refer certain matters to Police Ombudsman
Mr. David Trimble (Upper Bann) (UUP): I beg to move amendment No. 34, in
clause 5, page 3, line 32, leave out 'may have' and insert 'has'.
The Chairman: With this it will be convenient to discuss the following amendments: No. 35, in
clause 5, page 3, leave out lines 33 to 35.
No. 36, in
No. 68, in
clause 5, page 3, line 38, at end insert—
'(4AA) The Director shall refer to the Ombudsman any allegation coming to his attention that a police officer—
(a) may have committed a criminal offence; or
(b) may, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings,
which is not the subject of a complaint, unless it appears to the Director that the Ombudsman is already aware of the allegation.'.
No. 69, in
clause 5, page 3, line 39, after '(4A)', insert 'and (4AA)'.
No. 70, in
clause 5, page 3, line 42, leave out from 'insert', and insert ', (4A), or (4AA).'.
No. 71, in
Mr. Trimble: It is a pleasure, Mr. Benton, to get the sitting under way, just as I did last week. On that occasion, you had occasion to point out that I was speaking to the wrong amendment. I am speaking to the right amendment today, but one of the proposals contains a simple but important error. Amendment No. 36 should refer to ''before'', not
''after the coming into force of this section.''
The amendment raises an important issue, however, and it is particularly appropriate to touch on it this morning in view of what is going to happen in this place later today.
The purpose of the amendment is to prevent referrals to or investigations by the police ombudsman in respect of matters from the past—it is as simple as that. There are far too many examples of people are trying to refight old battles, or even to rewrite history. We shall see that more clearly later
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today, but constant efforts are being made to encourage the ombudsman to look into past events rather than to focus on the present and the future, as he ought to.
Indeed, only a few weeks ago, the Chief Constable of the Police Service of Northern Ireland said that he simply does not have the resources to carry out all these inquiries into the past that people wish to raise. He is having enough difficulty finding the resources to police society adequately today and he simply cannot cope with looking into a whole host of past events as well.
To those hon. Members who keep expressing the wish to dig up the past and to rewrite history, I say that they are not doing a service to society today; they are contributing to the undermining of the effectiveness of the police service. It is astonishing that those hon. Members who urge the police to conduct lots of inquiries into the past are only a second later complaining about there not being adequate policing resources in their neighbourhoods to deal with existing crime. They need to think about that. Amendment No. 36 would ensure that the clause had effect only with regard to the future, not the past.
Mr. Andrew Robathan (Blaby) (Con): What the right hon. Gentleman says is important in relation to Government policy. Do not the Government appear always to be leaning in one direction to pacify a particular section of the community? For instance, they have not instigated a long inquiry on Warrenpoint.
Mr. Trimble: The hon. Gentleman makes a good point and we will reflect on it later in our proceedings. People leave out of the calculation the fact that their perspective becomes warped in these matters. It is worth everyone recalling that nine out of 10 of the deaths that occurred during what are called the troubles were caused by terrorist organisations, and that two thirds of those were caused by republican terrorists rather than the so-called loyalist terrorists. Since the ceasefires, not a single death has been caused by soldiers or policemen.
Those who constantly make complaints and call for inquiries devote their attention almost entirely to the 10 per cent. and ignore the 90 per cent. That imbalance sends the wrong signals to society and enables those who are guilty of 90 per cent. of the killings to construct a make-believe world in which they invent spurious justification for their actions and try to divert attention from the nine tenths for which they are responsible. I do not know why hon. Members with an honourable record in opposing violence lend themselves to that, but that is another question that we must pursue elsewhere. Those hon. Members who support the campaign to conceal the nine tenths and focus purely on the one tenth are not benefiting themselves, their party or the society that they claim to represent. That is the wider issue behind amendment No. 36.
Amendment No. 35 would delete proposed new subsection (4A)(a)(ii) and omit the reference to behaviour that would ''justify disciplinary hearings''.
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That reference is inappropriate and misconceived; matters that are appropriate for disciplinary proceedings should be dealt with through the normal disciplinary channels and should be in the purview of the Chief Constable rather than the police ombudsman.
I shall briefly comment on other amendments in this group, particularly those standing in the name of the hon. Member for South Down (Mr. McGrady). If the Government accepted amendment No. 68, they would create an utterly impossible situation. The amendment would place a duty on the Director of Public Prosecutions to refer any allegation to the ombudsman. Everybody knows that hosts of allegations are made—it is a deliberate tactic of criminals and those associated with terrorist organisations to make as many allegations and complaints as possible to muddy the waters and waste police resources.
I ask the hon. Gentleman, whom I am sure will speak shortly, why he has tabled an amendment that would render the police ombudsman ineffective by putting on her desk a shower—in every sense of the word—of material and require her to investigate every allegation. She does not have the resources; indeed, the resources do not exist. The amendment would cripple the office of the police ombudsman and put an impossible burden on the police and the Director of Public Prosecutions. If ever there was an amendment that would wreck the administration of justice, this is it.
Mr. Eddie McGrady (South Down) (SDLP): Following our last sitting, I tabled amendment No. 68 on behalf of my party. Amendments Nos. 69, 70 and 71 are consequential on amendment No. 68. The amendments are designed to ensure the full implementation of the criminal justice review and of commitments made by the Government, especially at Hillsborough. In other words, they are designed to ensure that the Government live up to their word.
The criminal justice review recommended that
''a duty be placed on the prosecutor to ensure that any allegations of malpractice by the police are fully investigated.''
Clearly, the appropriate person to carry out such investigations is the police ombudsman—I do not think anyone disputes that—yet the implementation of that undertaking has been far from straightforward. The Justice (Northern Ireland) Act 2002 failed to impose a duty on the Director of Public Prosecutions to refer allegations of wrongdoing to the police ombudsman. Instead, it gave him only the discretion to refer such matters.
My colleagues and I cannot accept that, because we were told that the criminal justice review would be fully implemented. That is why we have sought new legislation to implement it properly. In particular, we were given a commitment that there would be—I quote from a Government source—a
''requirement on DPP to refer to Police Ombudsman cases of alleged police misconduct discovered in his casework''.
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That is quite specific, but the Bill does not implement that commitment. Nor, as a result, does it properly implement the criminal justice review. Instead, clause 5 provides only that the director shall refer any matter that
''appears to the Director to indicate''
that a police officer may have committed a criminal or disciplinary offence. So, if a matter does not appear to him to indicate police wrongdoing, he is under no duty to refer it to the police ombudsman.
In those circumstances, the director would decide whether an allegation lacked credibility and should not be referred to the police ombudsman. That is patently wrong. It is not for the DPP to investigate allegations of police wrongdoing; that is the job of the police ombudsman. Accordingly, the ombudsman should decide whether such allegations are credible. In a sense, that answers the questions raised by the right hon. Member for Upper Bann (Mr. Trimble). The ombudsman has the remit under statute to determine whether an allegation is frivolous or serious; it should be self-evident that that is not a matter for the DPP.
As to the burden that the arrangements would impose on the ombudsman, that is a theoretical matter. There is no evidence that the ombudsman would have to investigate a huge, overwhelming number of the allegations made to the DPP's office. After all, the holder of the ombudsman's office—it is a lady at the moment—must decide whether an allegation is frivolous or serious. An assessment of frivolity—that is a strange word to use in this context; perhaps I should say frivolousness—would wipe out many allegations, but some serious ones would be left.
The police ombudsman should have the right at least to know about every allegation of police wrongdoing, whether the DPP believes it or not. She has the right to know not least so that she can fulfil her statutory obligation to prepare and give statistical evidence on the number of allegations. It should be left to her to decide whether to investigate them.
That is not to say that proposed new section 55(4A), as inserted by clause 5, should be scrapped. It is right that the director should be under an obligation to refer all cases of suspected police malpractice. Indeed, the Government committed themselves to as much in the updated criminal justice implementation plan, which refers to a
''duty on the Director of Public Prosecutions to refer all cases of suspected police malpractice to the Police Ombudsman''.
That duty, in itself, is not sufficient. There should also be a duty on the director to refer to the police ombudsman all allegations of police wrongdoing. Whether he suspects that it took place or not is irrelevant to the case.
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