OTR0024 - Evidence on Administrative scheme for “on-the-runs”

Written Evidence to the Northern Ireland Affairs Committee for its inquiry into the ‘Administrative scheme for "on-the-runs"’, from Peter Sheridan, 10 November 2014 – OTR0024

Chairman/Members –

I have been following the work of the committee and of course the two recent reports. I would like to give my view on both reports. As you are aware this is my second time at the committee and I decided to accept the invitation to return because in many ways it the only opportunity for me to ensure in the interests of fairness that my concerns are recorded on the public record. At the outset I want to say that the comments I make are not because of any criticisms implied or otherwise in the various reports. I think anyone who has worked in public life has to accept that in inquiries such as this where, as Judge Hallett said – ‘they have had the considerable benefit of hindsight and without the contemporary pressures faced by those at the time’ – there is the possibility that we would do things different or perhaps not at all.

I also took this second opportunity to express my concern that there is in my view a real possibility that all of the accountability for what went wrong will be laid at the feet of the police – I also think that it is wrong that my colleague Norman Baxter and his team have been criticised to the extent they have.

Of course the police made mistakes, we should have alerted the DPP that John Downey was wanted by the Met police, there were errors in communications between various officers and various departments but all of that happened in a context where we did not know the full picture. In her report Judge Hallett said - ‘the approach of the Operation Rapid team during 2007/8 would likely have been very different had they known of the terms of the letters sent out.’ (P 141 Para 10.41) It for these reasons I believe that it is wrong to ascribe the considerable criticism at Norman Baxter and his colleagues.

With regard to the Report of the Hallett Review I found the report to be balanced, fair and thorough. I spent almost 4 hours in interview with Judge Hallet’s team, 2 hours were with Judge Hallett in person. I was satisfied she was trying to get a thorough understanding of the issues. At every level I felt that I was been treated fairly. Furthermore, before publishing her report she wrote out to witnesses to say ‘in recent times it has been the practice of statutory inquiries, and non-statutory reviews to indicate the nature of any potential criticism to those directly affected, before the report is finished. This allows them the opportunity to make any further comments. It also ensures that the individual is not taken by surprise when the report is published.’ The areas of criticism were included in her letter. I was then afforded the opportunity to respond in a further interview with Judge Hallett’s Junior Counsel, this allowed for adjustment to the areas of criticism.

I want to contrast this with the PONI report which I believe lacked fairness, lacked balance and lacked thoroughness. As someone who has read hundreds of investigations the report is in my view written in a way that suggests that conclusions were arrived at first and then evidence to support the conclusions gathered and evidence to the contrary view received little weighting. I say this with considerable regret. I have always been a champion of the role of Police Ombudsman in NI, even to the extent of encouraging ex-officers to cooperate with PONI investigations. But in this case my own confidence has been knocked. I approached requests for interviews from PONI in a very open and willing way but my experience has meant I am likely to approach any such requests differently in the future.

Unlike the Hallett report I was taken by surprise when the PONI report was issued. I had been advised in advance of the date of publication in the following terms – ‘As a key witness to our investigation we would also like to offer you the opportunity to read the report prior to public release. I must emphasis a reading of the statement would be for your information purposes only and is to ensure fairness to key witnesses/subjects whose accounts are subject to our findings’. I was not advised of the criticisms as per Judge Hallett and the offer to read the report was for information only – not with a view to allowing any response or change.

Furthermore, as I said I spent 2 hours with Judge Hallett in person. In the case of the PONI investigation I had 2 interviews with a Deputy SIO. Unlike Judge Hallett the Police Ombudsman has never spoken to me in person, nor as I understand he has he spoken directly to any police officer. This was not a criminal investigation and I am at a loss why the police ombudsman did not engage with those directly involved in the inquiry. This committee in this Inquiry like Judge Hallett have taken a direct and first hand interest.

Lack of Balance

There are a number of areas in the report where I believe that there is a lack of balance. For example, both reports raise the possibility that one of the terms of reference set too high a threshold for the arrest and questioning of suspects. Both reports come to different conclusions.

The PONI report says ‘the most serious flaw is the wrongly articulated threshold for arrest creating the potential to impose a different standard when considering the grounds for arrest than that normally applied.’ (P 61 Para 6:17) and further ‘the threshold which should have been articulated and applied was whether or not there were reasonable grounds for suspecting that the person under consideration had committed an offence. Nowhere in the TOR is this clearly accurately stated.’ (P28 para 4:71). At page 35 para 5.9 the ombudsman refers to a decision by the Acting Detective Chief Inspector as evidence of him using a higher standard.

Contrast this view with that of Judge Hallett who says ‘until the PSNI has concluded its lengthy review of all of the decisions previously made, it is too early to say whether an incorrect threshold was applied at any time, including in 2007/08.’

The ombudsman says that nowhere in the TOR is it clearly articulated that the threshold which should have been articulated and applied was whether or not there were reasonable grounds for suspect that the person under consideration had committed an offence, however I would point out 6a(1.) in the TOR states – ‘ Intelligence exists which is of a required grade, which has been assessed as to support a reasonable suspicion to be formed that X committed the offence for which he has been circulated.’

Furthermore unlike the Hallett report the Ombudsman fails to point out that the majority of offences considered by Operation Rapid were based solely on intelligence when the threshold was correct as per 6a(i) of the TOR. In the interests of completeness and accuracy this should have been referred to by the Ombudsman unless it is the case he didn’t understand this point or it didn’t suit his predetermined conclusions.

In addition, throughout the PONI report there are several references to Norman Baxter referring to ‘reasonable suspicion’ as the standard. (P 26 final para 4:62) (P 37 para 5:18) (P 45 final para of 5:39) (P 46 para 3 of 5:44) A fair-minded view would have referenced these when arguing that the threshold was set too high.

It would also have been fair to point out that the Rapid officers were not the ultimate decision makers, even if they had used too high a threshold files were referred to the DPP and as Kevin McGinty said in his evidence to this committee ‘the decision at the end of the day is one for the prosecutor, taken independently.’ In all cases the test for prosecution was taken by the DPP.

Lack of Thoroughness

The Ombudsman report also lacks fairness and balance in dealing with an issue I raised in interview when I said that standards for arrest had changed from when I was a constable. I had highlighted that if an individual had been listed as wanted in the early 1970’s after he had been arrested and evidence had been obtained but he/she had subsequently went on the run, the arrest may not be viewed by the courts in 2007 as lawful. The Ombudsman says in his report that he ‘received opinion from an independent legal expert, who has confirmed there was no change in law during that period in relation to the standards required for arrest.’ (P24 para 4:55) I have already shared a recent email chain between me and PONI where I pointed out that a major change happened around 2000 with O Hara v The Chief Constable which clarified that grounds for arrest required reasonable suspicion. I find it difficult to understand in any objective assessment and in the interests of thoroughness why this was not referred to.

A further example of a lack of thoroughness relates to the correspondence (email chain) between the NIO and my staff officer on whether external checks with other forces had been carried out. Judge Hallett in her report (p 130 paras 9.24, 9.25 and 9.26) discusses when it might be lawful for a police officer to inform others that a person is ‘wanted’. It is clear in my view that there was reluctance on the part of Norman Baxter to share sensitive information with civil servants in the NIO. It should be remembered that the whole point of the OTR system was to identify people who were not wanted. Equally in my experience officials in the NIO were careful not to cross the line into areas that may not have been proper. The data protection act deals with the control of sensitive data and while there may be lawful reasons when police officers can disclose sensitive information to civil servants it should only happen where rules and procedures have been agreed. No rules/procedures had been agreed in this regard between the police and the NIO.

I can find no evidence that the Police Ombudsman considered this issue and to the contrary it seems that he accepted without examination whether there were legal implications in the police disclosing such sensitive information in the absence of any agreement.

Finally, there are two additional matters I wish the NISC to consider –

There has been much discussion in both reports about the TOR – it is interesting in my view that the only organisation involved in the ‘government scheme’ to try and articulate in writing what role they would play was the police service. No other organisation involved in the scheme had written down procedures or TORs yet much criticism is directed at the police over 4 lines from the a 3 page document described by Matt Baggott to the committee in evidence as ‘very detailed’ and ‘very thorough’ . It appears to avoid criticism the best course would have been not to document the police role.
Neither report considered what would have happened if the letter I had sent to the DPP re John Downey had been left unaltered.
The Police Ombudsman refers to an email dated 9 January 2007 which he states is significant. I have consistently told the Ombudsman that I was unaware of the previous work carried out on OTRs. The Ombudsman suggests because of an email from the NIO dated 9 January 2007 I should have been aware. Having read this email I am satisfied that my staff officer would have read the email and forwarded on without reference to me because part of it said ‘But you may want to cross-check with (Detective Inspector of Extradition Unit) that the information elsewhere in the table is up to date.’ This would not be unusual as there would be hundreds of pieces of correspondence that would have come to my office and the role of the staff officer would have been to divert them to the various parts of the department. His suggestion that because of this one piece of correspondence I should have known the depth of the previous system is in my view akin to suggesting that because of some references to OTR’s in the wider public domain politicians should have known about the ‘scheme’.