Republican News · Thursday 25 July 2002

Accountability? New impunity for old

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A central tenet of the 'new beginning' to policing set out in the Good Friday Agreement is the requirement that in the future the police service be fully accountable for its actions.

The Patten recommendations required that the primary function of the new Policing Board should be to hold the police service accountable.

This week, Sinn Féin's GERRY KELLY continues his series of articles on policing with an examination of the flawed powers of accountability available to the Policing Board.

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The Police Act handcuffs the Policing Board so as to make inquiries into violations of human rights by the police force virtually impossible

Effective powers of inquiry are required to ensure that the impunity with which the RUC has acted in the past does not become our future. This is critical to a new beginning to policing. This is what the two governments and the political parties signed up to on Good Friday. This is what the electorate, north and south, endorsed in referendums four years ago.

Recent events, reports and revelations again demonstrate the vital necessity for this. They also clearly show that this is not only a 'policing' problem but a touchstone issue for the securocrat empire of the NIO, which continues to dominate the British government's political agenda in a range of ways. More than anything else, this is evidenced in the murder of Pat Finucane. In particular, this was illustrated again in the BBC's Panorama programmes broadcast in June.

• The man who supplied the information leading to Pat Finucane's death was British Military Intelligence agent and UDA member Brian Nelson.
• The man who supplied the guns was Special Branch agent and UDA member William Stobie.
• The man who admitted pulling the trigger, according to RUC-CID Officer Jonty Brown, was Special Branch agent and UDA member Ken Barrett.
• In charge of all of these people was Special Branch agent and UDA commander Tommy Lyttle.
• British Military Intelligence and RUC Special Branch knew exactly what was happening as the plot unfolded. Yet they did nothing to prevent it.

Nelson was granted immunity by former direct ruler Patrick Mayhew. This was a British government decision. The policy of collusion was cleared at this level. So too were the tactics of Patrick Mayhew to limit political damage to the British establishment.

Lyttle died of natural causes.

Stobie was shot dead by his own people. Despite his status as a Special Branch agent and a threat to his life, incredibly, he was afforded no protection.

Barrett is under wraps in England. Loose wraps that is. He had access to the Panorama team on a number of occasions during the production of their programmes, which argued that rogue RUC Special Branch officers, as opposed to British government policy, is at the heart of collusion between the police force, the British Army and loyalist paramilitaries.

Not a single Special Branch member, Military Intelligence Officer or NIO securocrat has been held to account. Moreover, the British Police Act 2000, which some would have us believe is the promised 'new beginning', ensures that they cannot be held accountable. For under this the Chief Constable has the power to refuse to give up information on such activities by Special Branch officers and Special Branch agents.

Accordingly, the Oversight Commissioner Tom Constantine and the Ombudsman Nuala O'Loan have independently complained about the refusal by the Special Branch to cooperate with them and they do not have powers to compel them to do so. Conversely, however, the Chief Constable can reject outright any request for a report on such matters by the Policing Board.

Patten required, and with no ifs, ands or buts about it, that human rights abusers have to be dealt with. Not only is there no mechanism to do so but incredibly, it is quite likely that RUC members who were in the Special Branch, say eight years ago at the time of the first IRA cessation, can still be in the Special Branch several years from now; acting with the same impunity; with the same lack of democratic accountability; with the same support, as in the past, from the British government. The British government legislation on policing guarantees this. It was crafted to have this effect and there is no commitment by the British government to resolve this. Indeed, one of the Weston Park proposals on policing seeks to entrench this state of affairs.

The Police Act handcuffs the Policing Board so as to make inquiries into violations of human rights by the police force virtually impossible. It does this by erecting a series of procedural hurdles.

• Under the Act, the Policing Board cannot undertake an inquiry until it has received a report from the Chief Constable. A mechanism is built into the Act that enables the Chief Constable to escape this requirement to report. The Chief Constable has the power to refer a request by the Board to the British Secretary of State on four grounds, including grounds that subvert Patten.
• The British Secretary of State can uphold the refusal of the Chief Constable to refuse to report to the Board on any of the grounds in the Act, including the offending grounds.
• For the Board to decide to hold an inquiry, three Board members must make a written request and then, rather than a simple majority, the Act specifies the number of Board members required to ratify a decision to hold an inquiry: 10 members if 18/19 are present; 9 members if 16/17 are present; 8 if less than 16 are present.
• The Chief Constable can then challenge the Board's decision to hold an inquiry on any of the grounds in the Act and the decision to hold an inquiry may be referred to the British Secretary of State.
• The British Secretary of State can overrule a decision of the Board to hold an inquiry on any of the grounds in the Act.
• The Board requires the agreement of the British Secretary of State to the appointment of any person to conduct the inquiry, other than the Comptroller and Auditor General; the Ombudsman; an inspector of the police service in the Six Counties.
• The inquiry may not deal with an act or omission that occurred before the coming into force of the Act. Limited information about a prior act or omission may be given "consideration" by a person conducting an inquiry to the extent that the discharge of functions in relation to the subject of the inquiry can be shown to make "consideration" of that information necessary.
• Finally, the expenses incurred by anyone conducting an inquiry and anyone appearing at an inquiry must be paid out of the Board's own budget.

The British government is committed to a review of its policing arrangements in the autumn. In respect of the above, they intend only limited change. That is:

- In respect of Policing Board powers to require reports and initiate inquiries, the British government intends, after review, to remove one ground of appeal against Policing Board reports and inquiries and to redefine another ground of appeal.

- In addition, the British government intends, after review, to give the Ombudsman power to investigate police policies and practices and to amend police force regulations to reduce non-cooperation with the Ombudsman from a criminal to a disciplinary offence.

On top of all of this, the situation pre name change - from RUC to PSNI - still obtains. That is, the uniform branch and the CID remain a filter for the recruitment and protection of Special Brach agents like Stobie, Nelson, Barrett and Lyttle. They cannot make arrests or charge anyone without the green light of Special Branch. This is the reason for the paucity of charges in respect of the ongoing campaign of sectarian violence by loyalists against the Catholic and nationalist population.

Robust, rigorous and unfettered powers of inquiry are required by the Policing Board and the Ombudsman. We need to know the truth about the murders of Pat Finucane, Rosemary Nelson, Robert Hamill, Pearse Jordan, and of Sam Devenny, Patrick Rooney, Nora McCabe and Padraig Kelly. We need to know the truth about collusion between loyalists and the Crown Forces. Over 300 people were killed. For true accountability, we need to know what happened and why.

d once the 'wall of silence' has been knocked down, only true accountability will ensure that wall can never be rebuilt. That is the guarantee every democrat, nationalist and republican, needs. That guarantee needs to be in law. If the British government will not do that, then the new beginning to policing cannot commence. The Police Act must be amended to ensure that the legacy of the past does not remain the policy of policing in the future.