Clause 35 - Police complaints

Justice (Northern Ireland) Bill – in a Public Bill Committee at 5:15 pm on 5 February 2002.

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Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh 5:15, 5 February 2002

I beg to move amendment No. 201, in page 21, line 14, at end insert—

'(3A) In section 55 (Consideration of other matters by the Ombudsman), after subsection (1) insert

''(1A) The Director shall refer to the Ombudsman any matter which—

(a) appears to the Director to indicate that a member of the police service may have—

(i) committed a criminal offence; or

(ii) behaved in a manner which would justify disciplinary proceedings; and

(b) is not the subject of a complaint.'''.

Photo of Mr Peter Pike Mr Peter Pike Labour, Burnley

With this we may discuss amendment No. 202, in page 21, line 15, leave out

'in subsection (1) (in each place) and'.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

The amendments are directly connected. They attempt to clarify what the DPP must do if he receives information to suggest that a police officer has committed a criminal offence or has

breached discipline, but a formal complaint has not been made. The DPP must refer such matters to the police ombudsman.

The amendments are intended to give statutory effect to recommendation 21 of the review, which states:

''We recommend that a duty be placed on the prosecutor to ensure that any allegations of malpractice by the police are fully investigated.''

Accordingly, the amendments would strengthen the Bill, which gives the DPP only discretionary authority to bring a matter to the ombudsman's attention. The review is fairly explicit. We believe that that recommendation—it also appears in paragraph 4.133—will strengthen not only the DPP and his office, but the position of the police.

In effect, the amendment is an attempt to avoid police bashing, and to avoid criticising the process of justice. Instead, it is an attempt to strengthen both the police and that process, to allow for maximum confidence in their operation and perception. I recommend the amendments.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

Once again, I am sorry to say that my questions for the hon. Member for Newry and Armagh might have been better in an intervention.

The hon. Gentleman's intention is clearly to objectify and codify when something will be referred to the ombudsman. Nevertheless, the amendment does not do that, because somebody would still be required to make a judgment about whether an offence had been committed. The subjective nature of such a judgment could simply be bumped up one level, so that if the Secretary of State and the police authority were so inclined they could state that, in their judgment, there was no such indication.

Does the amendment achieve the hon. Gentleman's goal, or does it simply increase the pressure on the Secretary of State and the police authority to say, on occasion, that there is not sufficient indication that a member of the police force has committed a criminal offence or behaved in a manner that would justify disciplinary proceedings? If my concern is founded, that could serve to increase stress on the police authority, and that would worry me.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh 5:30, 5 February 2002

I do not believe that to be the case. The amendment is consistent with the review's clear recommendation that a duty be placed on the prosecutor, and it attempts to define that duty. I know that it may not be the best way to approach the matter, but is it conceivable that, in some instances, the director should not ensure that an allegation of malpractice on the part of the police is fully investigated? If so, we shall need to make it clear in what circumstances he should not do so.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

The hon. Gentleman has kindly outlined why he would prefer a duty to a discretion with reference to the review. Section 55 of the Police (Northern Ireland) Act 1998, which the clause amends,

not only treats the Secretary of State's power as discretionary, but states that matters should be referred to the ombudsman

''if, after consultation with the Ombudsman and the Chief Constable, it appears to the Authority or the Secretary of State that it is desirable in the public interest that the Ombudsman should investigate the matter.''

That section requires a consultation process. Will the hon. Gentleman tell the Committee why such a process is omitted from his amendment?

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

Mainly because I am not writing the Bill. The amendment is designed to ensure that, in circumstances where a police officer breaches the rules or does something that would lead to disciplinary proceedings, but is not yet the subject of a complaint, the DPP would have the power and the duty to deal with that.

The hon. Member for Montgomeryshire asked what effect the amendment would have on the Policing Board. Let me be honest: if the Policing Board is not strong enough to maintain the highest standards in the police, then it will not survive. I am convinced that it will, and that openness of the type contained in the amendment will help it to do so.

The essence of the amendment is clear. We are in the midst of something new. We have had a horrific 30 years in terms of Northern Ireland society. Allegations have been made against the police and there has been mistrust of the courts. Those things will not disappear overnight; as legislators, we shall have to deal with them through the law that we write and the type of arrangements that we are making under the Bill.

I venture to suggest that, if we were dealing with any other country in the world except Northern Ireland, there would not be a whimper about the matter. I am not sure that there would be any reaction. However, I am aware that the issue raises hackles and causes concern. I do not live in a vacuum. I am aware of the attitudes that exist towards policing, the police ombudsman and the judiciary, but if the Bill is to work, we must place ourselves many steps above those attitudes.

I ask hon. Members to judge the measure on its merits. Is it not right that, if a police officer commits a criminal offence or behaves in a manner that justifies disciplinary proceedings, the DPP should have a duty to investigate? I am not sure that anybody in the Committee would disagree with that solely on its merits, but there are many connotations that might prevent such agreement.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

As my hon. Friend fairly says, the amendment is designed to impose a duty on the director to refer matters to the police ombudsman for investigation if circumstances seem to indicate that a police officer has committed a criminal offence or has behaved in a manner that would justify disciplinary proceedings and that police officer is not the subject of a complaint.

As the hon. Member for North Down pointed out, the clause amends the Police (Northern Ireland) Act 1998 to allow the director to refer such matters to the police ombudsman. As she said in an intervention on my hon. Friend the Member for Newry and Armagh, the clause puts the director on an equal footing with the Policing Board and the Secretary of State in such matters. Committee members should also understand that the power that the clause gives to the director, and the powers capable of being exercised by the Secretary of State and the Policing Board, are additional to the ombudsman's own power to intervene and investigate such instances as come to her attention.

It is not clear to me, other than by reference to the bold words of the review's recommendation, why my hon. Friend the Member for Newry and Armagh should wish to put the DPP in a more rigid position in relation to a set of circumstances than those responsible for the delivery of policing in Northern Ireland. The hon. Member for North Down made that point, and it is important. Perhaps, in responding to the debate, my hon. Friend can articulate why he thinks the DPP should be put in a more rigid position than the Secretary of State and the Policing Board.

The argument for the absence of rigidity in relation to the Policing Board and the Secretary of State cannot simply be that if the board does not run the system properly, things will, in any event, go badly for Northern Ireland. I am not seeking to disparage my hon. Friend's argument by paraphrasing it wrongly, but I have yet to hear a convincing argument that the DPP should be put in a more rigid position and should not be allowed the discretion that both the Policing Board and the Secretary of State would be able to exercise, should the same circumstances come to their attention.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

Is it conceivable that there have been instances over the past 30 years in which the Secretary of State and the police authority did not proceed where there was a criminal offence, or where members of the police force behaved in a manner that would justify disciplinary procedures? There is a difference between rigidity and the type of fluidity that will not add to the authority or the stature of the DPP. The ordinary person will accept the type of decision that we have made and will make about the DPP. The ordinary person will also want to see what will be done about potential offences by members of the police service. If the situation does not change, the nuances of the Minister's argument will not be conclusive where attitudes to the new system are concerned. The Minister should reconsider what will be required of ordinary people like myself in relation to the final outcome of the Bill.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

I am grateful to my hon. Friend who, with due respect to all other members of the Committee, recognises better than any of us the nuances of arguments. In the short time in which I have been in the House, I have tried to learn from people like him how to deploy the nuances of arguments. It is important that the subtleties of this

argument are understood. I shall try to explain the thinking behind our attempt faithfully to implement the review's recommendation.

The recommendation is not that subtle; it expresses a duty to ensure investigation. When it comes to me, as the Minister responsible, to be translated into a statutory provision, that has to be done in a context in which the people of Northern Ireland live and other public officials in Northern Ireland operate. One of those officials is the ombudsman. A bald interpretation of the recommendation would cut right across the ombudsman's responsibilities, because she is charged with a duty to investigate in many such circumstances. Skill and nuances had to be adopted in order to turn the interpretation of those recommendations into a statutory provision. That is why the statutory provision that we are dealing with could not be seen to be usurping the position that the ombudsman already enjoys in relation to the investigation of complaints against police officers. There must be a balance. What does one do? How does the DPP ensure full investigation in those circumstances?

One can ensure full investigation by referring the matter to the ombudsman, but that is not the only way in which matters can be investigated. My hon. Friend suggested that there were no circumstances in which it would be palatable for the DPP to do anything other than refer the matter to the ombudsman, but there are trivial infractions of disciplinary codes. My hon. Friend's amendment would require the DPP to send a trivial infraction of a disciplinary code to the ombudsman for investigation, although it could easily be investigated and dealt with by the Chief Constable. The DPP would be prevented from applying his discretion and common sense to a set of trivial circumstances.

The second possibility is that if the DPP intended to prosecute a police officer on the strength of evidence in a certain set of papers, he would not be able to do so because the provision would oblige him to refer the matter to the ombudsman for investigation. In fact, the prosecution of a police officer for a criminal offence, if there were sufficient evidence and a clear public interest in prosecution, would be delayed by referral to, and investigation by, the ombudsman.

The Government share my hon. Friend's objective of implementing the review recommendations, but when we take into account trivial and very serious cases and the existing role of the ombudsman, the matter is not as simple as it first appears and contains some nuances.

For those reasons, we believe that the provision is sufficient to allow the director to fulfil the duty that the review recommended should be placed on him to ensure that those matters that find their way to his desk are investigated properly, but not exclusively by the ombudsman.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh 5:45, 5 February 2002

It should be noted that the amendment says ''refer'' to the ombudsman—nothing further. I completely agree with the Minister about a lesser type

of matter, which would, under present legislation, be dealt with by the Chief Constable. I do not envisage that such a disciplinary matter should be dealt with by anyone other than the Chief Constable, but we need to ensure that the stringency that we place on the DPP in relation to the entire community also applies in this instance.

The Minister makes a strong case, and part of its strength lies in the fact that the ombudsman can choose to become involved, but surely the process will be more transparent if someone of the stature of the DPP is involved in referring a case to the ombudsman—I am not talking about trivial disciplinary matters. I do not think that that would have the implications that the Minister envisages.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

I am not sure that that was an intervention, Mr. Pike, but I will treat it as such. I thought that I had finished, which is probably why I was so relaxed, and now I must wind myself up again.

My hon. Friend argues persuasively, but the strength of the argument is in my favour. For the reasons that I have given, including that relating to the most trivial and the most serious cases, the DPP should continue to enjoy some discretion, but we are giving him no more discretion than the Secretary of State or, more importantly, the Policing Board already enjoys in this context. That is a powerful argument.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

May I try to give the hon. Member for Newry and Armagh some peace of mind? I listened carefully to his earlier remarks, particularly his mention of the Hamill and Finucane cases. We are discussing section 55(1) of the Police (Northern Ireland) Act 1998, but I would like to quote subsection (2). It states:

''A Chief Constable shall''— it is clearly a duty—

''refer to the Ombudsman any matter which appears to the Chief Constable to indicate that conduct of a member of the police force may have resulted in the death of some other person.''

When a death has occurred, the Chief Constable already has a clear duty to refer such serious cases to the ombudsman.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

I suspect that cases do not come any more serious than that, but it may be of some comfort. I am sure that my hon. Friend knows the genesis of that provision. It was thought necessary in Northern Ireland to give the ombudsman a compulsory power to investigate in certain circumstances. It is not the only matter that is required to be referred to the ombudsman by the Chief Constable in which the former has an investigatory or supervisory power. I merely encourage my hon. Friend the Member for Newry and Armagh to consider this provision as part of a complex web of provisions that are designed to meet the objective that both he and the Government seek. However, they can come into conflict with each other if they are not drafted so as to fit into the existing legal structure.

Photo of Mr Tony McWalter Mr Tony McWalter Labour/Co-operative, Hemel Hempstead

I congratulate my hon. Friend the Minister on the power and energy of his argument. Would he agree that in addition to escalating trivial cases, the amendment could have the serious effect of escalating cases of malicious accusation, which is another important consideration?

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

We are all conscious, from our experience as Members of Parliament, of the dangers of malicious complaints. Society is becoming more skilful in dealing with them, but we have to trust the people to be appointed to such positions, particularly the person who will occupy the position of the DPP, of being capable, from their substantial experience in that area of the law, of identifying malicious complaints. I can see the merit in my hon. Friend's argument that we must be alert to malicious complaints, but I would rather trust in the abilities of the people who are appointed to such positions than in legislation to give that protection.

I cannot usefully add to my argument. I hope that I have convinced my hon. Friend to withdraw the amendment. That is not to say that we cannot revisit the subject. Should he find a formulation that has the necessary nuances, I would be happy to debate it with him, but I hope that I have convinced him that he can safely withdraw the amendment.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I must state that the Minister made a powerful argument. He made three convincing points—at least they began to convince me. The first was about the power of the ombudsman to involve himself. The second, which was valid, was about the constraints that the amendment might put on the DPP with regard to the action that he could take—not with regard to referrals but in terms of his position. The third point was about the Policing Board. Those three points, together with the point raised by the hon. Member for North Down, lead me, reluctantly and against my better judgment, to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 ordered to stand part of the Bill.