Written evidence from the Police Ombudsman for Northern Ireland (HRO0019)

Thank you for the opportunity to contribute to the current inquiry into establishing a Human Rights Ombudsman. Please find below my response to the Committee’s questions. I am happy to provide any additional information or evidence by way of clarification that will assist the inquiry.

At the outset I wish to clarify that the term Ombudsman is a Swedish word and is gender neutral and frequently the Ombuds is used interchangeably with the term Ombudsman. There is much debate in Ombudsman circles about the correct term.

The Police Ombudsman for Northern Ireland (the Police Ombudsman)

The Police Ombudsman for Northern Ireland was established in November 2000 as part of a package of policing reforms that were deemed necessary to ensure the support of both the nationalist and unionist communities in Northern Ireland. The Joint Committee will be aware of the period of conflict in Northern Ireland from 1966 to April 1998 known as ‘the Troubles’.   The Police Ombudsman was established following a review of the police complaints system conducted in 1997 by the former Northern Ireland Ombudsman Dr Maurice Hayes. His model for a new police complaints system was based on the classic Ombudsman model of ‘trusted official’ who would investigate complaints from members of the public. There was widespread support for this model and the key to its success was identified as the independence of the Office holder. Dr Hayes recommended that a judicial official holder or a senior member of the legal profession would be suitable as the new Police Ombudsman. The Office was established pursuant to Part Vii of the Police ( Northern Ireland ) Act 1998 (the 1998 Act ) . In 2001 the Royal Ulster Constabulary (RUC) ceased to exist and was replaced with the new Police Service for Northern Ireland (PSNI).

As Police Ombudsman I have jurisdiction to investigate complaints from a member of the public. I must investigate every complaint. Also the Chief Constable, Director of Public Prosecutions, Northern Ireland Policing Board, Department of Justice (DOJ) and the Secretary of State may refer a matter of police conduct to me where the conduct appears to indicate criminal or misconduct that would justify disciplinary proceedings. I have the authority to investigate these referrals where I consider it is in the public inters to do so . The power to commence an investigation into potential criminality or misconduct is also provided for in the 1998 Act where the Police Ombudsman has no complaints from a member of the public and he/she considers it is in the public interest to investigate. This is an important power as many individuals who have law enforcement interactions with police, are fearful of making complaints or are unable to do so because of underlying vulnerabilities such as addictions or homelessness. Section 60a of the 1998 Act provides for the Police Ombudsman to investigate current policing policy and practice where a matter has been brought to the attention of the Ombudsman under Part VII of the 1998 Act and it is considered in the public interest to investigate. In 2021/22 the Police Ombudsman received 2950 complaints about PSNI officers and staff. This is the highest figure since 2015/16 and 12 own motion investigation were commenced.

In addition to dealing with matters relating to current policing the Police Ombudsman has over 450 cases relating to the conduct of former RUC officers during the Troubles. Due to resource constraints over half of these cases are pended and currently there are approximately 160 ongoing investigations. The Northern Ireland Troubles (Legacy and Reconciliation) Bill 2022 is currently at the Committee stage in the House of Commons. As drafted it proposes the removal of all complaints relating about the former RUC from the jurisdiction of the Police Ombudsman.

The Police Ombudsman receives complaints about the infringement by police of an individuals by of their human rights such as the right to life, inhuman and degrading treatment, the right to privacy and the right to protest and freedom of speech. These are dealt with using a Human Rights Investigation Manual and staff are confident in deciding issues of proportionality and necessity, for instance in relation to the use of force by officers.

Question 1 Should there be a Human Rights Ombudsperson ? If so , what powers and resources should the Ombudsperson need to address the challenges people face in enforcing rights out of court .

Ombudsmen schemes more generally have been described as Alternatives to the Court and are a free and accessible complaints handling service.

Like other Ombudsman Offices, the police Ombudsman has power to seek to informally resolve a complaint. However a complainant may not be content to accept a proposed resolution of their complaint, in which case the Police Ombudsman must investigate the matter. Unlike other police oversight bodies the Police Ombudsman deals with all complaints about police conduct and if a member of the public complains to a police officer, he/she must refer the complainant to the Police Ombudsman.

The Police Ombudsman does not believe there is a necessity to establish a Human Rights Ombudsperson. That is because all ombudsmen schemes are effective in dealing with complaints about public services that raise human rights issues and in doing so seek to protect and safeguard the rights of complainants and those complained of . Many Public Service Ombudsman deal with health, housing and social care issues as well housing matters. Those complained of such as police officers or healthcare professionals also require the protection to their reputation and home and family life afforded by article 8 of the European Convention on Human Rights (the Convention).

The Venice Principles for Ombudsman Institutions make it clear that a core function of an Ombudsman is the protection and safeguarding of human rights. In December 2020 the UK Government co-sponsored a United Nations General Assembly Resolution to adopt the Venice Principles for Ombudsman Institutions.

Joint Working with Human Rights Commissions

In my role as former Norther Ireland Public Services Ombudsman (NIPSO) I worked jointly with the Northern Ireland Human Rights Commission to develop a Human Rights Based Approach (HRBA) to Ombudsman investigations. An investigation manual reflecting the core Human Rights principles of Participation, Empowerment, Equality and Non-discrimination and Accountability was developed and published in 2016 at an International Human Rights Conference in Belfast. The investigation manual included a Human Rights screening tool for NIPSO staff to ascertain if a complaint raised human rights issues,

In my role as Police Ombudsman I worked with my Director of Current Investigations to develop a new Human Rights based investigation manual for our staff to apply human rights principles and jurisprudence in their investigation of police conduct. Each chapter has a human rights section. The Investigation is a living document that is updated as PSNI policies and DOJ guidance as well as Convention case law develop over time.

Question 2 What powers should the Ombudsperson need to provide an effective remedy as required by article 13 of the Convention for individuals to enforce their rights ?

Ombudsman institutions, like the Police Ombudsman, are given powers to make non binding recommendations. Although a body in the jurisdiction of the Ombudsman may chose not to accept a recommendation, they must give cogent reasons for doing so.

In December 2020 the Police Ombudsman published a report on PSNI’s practice and policy in the policing of Black Lives Matter protests in Belfast and Derry/Londonderry which took place on 6 June 2020. The Recommendations and PSNI’s response are set out below

Recommendation 1: That PSNI consider adopting a Human Rights based approach to policing of protests based on the four principles: participation, empowerment, equality/non-discrimination and  accountability.

• PSNI Response: Accepted recommendation and intend to assess how each of the four principles can be included in command training. Will examine service policy to establish how the principles can be included in decision-making and record keeping.

Recommendation 2: That PSNI develop human rights based assessments evidencing the identification of relevant rights, balancing competing rights and risks to include appropriate measures to address PSNI’s obligations and mitigate identified risks.

• PSNI Response: Accepted recommendation and tasked a Working Group to examine existing culture and practice, review current record keeping and develop an appropriate means to capture Human Rights based assessments for all events, including protests.

Recommendation 3: That PSNI review the enforcement Notices issued on 6th June, acknowledge errors and commit to redress for those individuals affected.

• PSNI Response: Initially not accepted. PSNI stated that the decision to rescind Fixed Penalty Notices was not for them to make. However, when followed up by Police Ombudsman, PSNI made a request to the Courts Service to rescind the Notices.

Recommendation 4: That the Chief Constable periodically reports to the Northern Ireland Policing Board on progress with his commitment to commissioning strategic engagement with Black, Asian, and Minority Ethnic communities.

• PSNI Response: Recommendation accepted and the method and regularity of reporting to the Policing Board is to be agreed with the Board.

The PSNI Chief Constable accepted all but recommendation 3 but later agreed to rescind the Fixed Penalty notices and this is an example of the Police Ombudsman providing an effective remedy to the protesters and said

“The time is right to show some humility and say sorry.”

“We will seek to embrace the lessons learned and carefully consider [the Ombudsman’s] specific recommendations about policy, practice and procedural fairness.”

This is a case study where the Police Ombudsman has through recommendations effected systemic change in the PSNI recommending the adoption of a HRBA approach to the policing of protests.

Question 3 How should the Human Rights Ombudspersons interact with existing mechanisms such as Ombudspersons and Commissioners including in the devolved nations?

The Police Ombudsman considers that ultimately whether or not a Human Rights Ombudsperson is established is a matter for Government .  However she believes that introducing this new body to deal with complaints about human rights would result in significant duplication of the work of Ombudsmen schemes and Human Rights Commissions such as the NIHRC. This Commission receives complaints from members of the public from individuals and refers these where appropriate to the relevant Ombudsman’s Office. The role of Human Rights Commission is important in providing specialist human rights expertise and advice to Ombudsman schemes. The roles of Ombudsmen and Human Rights Commissions complement each other.

Question 4 How would the Human Rights Ombudsperson interact with other bodies tasked with upholding human rights, including the UK Equality and Human Rights Commission?

Ultimately the introduction of a Human Rights Ombudsperson is a matter for the Government and the Police Ombudsman has set out her views above on this issue. However, the Ombudsman contends that joint working is a model that has worked well in Northern Ireland as highlighted in this correspondence.

Question 5 Are there other steps that should be taken alongside introducing a Human Rights Ombudsperson to ensure people can effectively enforce their rights out of court?

The Police Ombudsman has set out her consideration of the establishment of a new Human Rights body when existing mechanisms are working effectively . A proliferation of oversight bodies can to lead to confusion on the part of the public and also duplication and inefficiencies as well as overburdening public bodies that are within jurisdiction. The Ombudsman contends that existing Ombudsman schemes and Commissions provide effective routes to redress for people whose human rights may have been infringed. Many people do not wish to go to court and free and accessible alternative mechanisms for dispute resolution currently exits.

Yours sincerely,

Marie Anderson

Police Ombudsman for Northern Ireland

01/07/2022

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