The Role of the Human Rights Act in policing in Northern Ireland

Chief Constable George Hamilton

26 January 2016

Human Rights and Policing

Good morning and thank you for having me here today to talk on the immensely important issue of Human Rights. I am no academic; nor am I a legal expert; but I hope that I can contribute to your debate by providing a practitioner’s perspective on the implementation and practical application of a human rights framework.

A fundamental building block of effective policing

Policing often requires balancing competing human rights and I will explore this issue in more detail later.

I want to begin with the basic principle that policing is about protecting human rights; and human rights are an enabler of effective policing.

The first place where this principle was so clearly articulated was in the 1999 Patten Report. The report made seven specific recommendations in relation to human rights – all of which were implemented. But it also articulated an ambition that human rights should be an organisational instinct, rather than simply a procedural point to be remembered.

 

As a younger police officer, I was on the Patten implementation team. Over 16 years on, I am now Chief Constable; and I can say with confidence that not only have the PSNI embraced this ambition; we continue to work hard to realise it every day.

 

One of the Patten recommendations was the appointment of a human rights Legal Adviser, who is consulted on a daily basis about police operations that raise human rights considerations.  While in itself, this legal advice is critically important, for our Police Service, human rights is about much more than formal legal compliance; it is about the decision maker on the ground understanding and putting into practice the concepts of human rights. It’s primarily a cultural issue rather than a compliance issue.

 

Every PSNI officer makes a commitment to human rights when they take their oath of office.  Protecting human dignity and upholding human rights are also woven into the PSNI Code of Ethics which sets out the standards and behaviours expected from police officers.

 

Human Rights have been incorporated into our policy and practice and it has become the norm for human rights to guide the decisions we make and the operational activity we undertake.  Whether considering use of force; or deliberating over budget cuts, our organisation will always look to our obligation to keep people safe and our commitment to uphold the fundamental rights of the individuals and communities that we serve.

 

 

 

Human Rights and Accountability

 

While it was a central proposition of the Patten Report that the purpose of policing should be the protection of the human rights of all; Patten also acknowledged that there can be a tension between policing and human rights.

Policing exists for the protection of the community. In order to achieve this goal society accepts, and indeed demands that the law grants police officers a range of powers to limit the rights and freedoms of our fellow citizens, for example, the powers to stop, search or arrest.

No one would credibly suggest that Police should not be able to enter private property to arrest a domestic abuser or use reasonable force when it is necessary to stop someone attacking another. However, in a liberal democracy, one citizen cannot be granted such powers over another without significant checks and balances.

For PSNI, human rights provide a practical framework through which we can use our policing powers while the rigorous accountability structures of the Policing Board and the Police Ombudsman ensure that we exercise these powers with the confidence and consent of the community.

The Policing Board in particular takes a very proactive approach to scrutinising our engagement with human rights.  In addition to regular Committee meetings and the monthly public meeting, the Board’s Human Rights Advisor produces an annual report highlighting both good practice and areas in which our application of human rights could be improved. This “dialogue” is extremely valuable for us and provides welcome objective clarity on how we are performing. A testimony to our commitment is that since the PSNI came into being, we have implemented 102 recommendations flowing from the Board’s Human Rights Annual Reports.

 

“Nothing worth doing is ever easy”

The construct of human rights and accountability in policing has more than proven its worth. The most recent independent research for 2014/15 puts confidence in policing at just over 80% – a truly remarkable achievement that is often forgotten in our 24/7 news agenda.

However, “nothing worth doing is ever easy”. In my view, the more challenging the policing issue, the more important human rights and accountability become. However, we should not pretend that they provide a clear or instant resolution to every critical issue we face. In a world that is constantly changing; the implementation of human rights is a constant process; it is a job that is never truly complete; and therefore something to which we cannot reduce our efforts.

 

In the hope that it will prompt some discussion throughout your conference, I would like to spend some time illustrating some of the challenges we continue to face. Conversations such as the ones you will be having today help shape our future development in this important area.

 

Human Rights and Policing the Threat

 

Stop and search is perhaps one of the most obvious examples of challenge for both the Police Service and for the community. I accept that there are many who would argue that stop and search, and in particular no-suspicion stop-and-search powers under the Justice and Security Act, are an unnecessary infringement of human rights. Believe me, I wish we did not need these powers but the facts remain that we are required to use them in order to keep people safe. The UK Supreme Court has ruled that, used properly, the powers are lawful.

 

In the PSNI, we make every effort to use these powers correctly. Human rights form a key consideration in how we apply stop and search and our decision making and operational activity is subject to very rigorous internal and external scrutiny. In particular, I would also highlight the level of scrutiny and attention the Policing Board has given to the issue over recent years. We are currently finalising the implementation of a range of challenging recommendations made by the Board’s Thematic Report on Stop and Search. We have listened carefully to community feedback and have challenged ourselves as much as possible. This has resulted in an almost 40% reduction in the use of stop and search under the Justice and Security Act in the last year.

 

I believe public debate on stop and search is a healthy thing, although the debate should be rooted in facts rather than rhetoric. For example, we search five times more people under the drugs legislation than under the Justice and Security Act. Stop and search is not part of a “political policing” agenda, as some would argue. It is a tool we use to keep people safe.

 

Human Rights Universality – not popularity

One of the greatest challenges facing any practitioner of human rights is striking a balance between competing rights and interests in a free and democratic society. Human Rights are defined by their nature – they are universal, interrelated, interdependent and indivisible. “Popularity” or “doing what the majority of people want” are not terms that define human rights.

A decision made in accordance with human rights may not always appear to someone on the outside as the most obvious, popular or right decision. For these reasons, accountability, transparency, engagement and communication around our decision making is absolutely essential to maintaining community confidence. One area where this is clearly illustrated is our approach to the policing of parades and protests.

In the months and weeks leading into the main part of the parades season and throughout the season itself, police officers at all levels of the organisation work closely with parade and protest organisers to help them understand what  police deployments will look like and why.  We also listen and learn from their views, and where possible, will adapt our style and approach.

But the challenge for my organisation, charged with the delivery of policing in a peace building society, is that at times, the universal nature of human rights is ignored, and the focus becomes solely on an interpretation of “my” human rights or the human rights of “my community”. Too often my organisation is required to step into a situation and make decisions about balancing the human rights of opposing groups as a result of a broader societal failure. This is not just in relation to parades and protests but a whole range of unresolved post conflict challenges that, in the absence of some form of political resolution, continue to be left at the door of policing.

 

In a society where space, symbols and history remain contested, the public debate on how PSNI balance competing human rights becomes distorted, with every police action analysed and often misinterpreted to the extent that we are accused of policing one community differently to how we police another.

 

This is an extraordinarily frustrating challenge for me as Chief Constable and one that I cannot solve alone, no matter how dedicated I am to human rights. I acknowledge the indications for political progress on the issues of parades, protests and flags in the recent Fresh Start Agreement and I hope that momentum can be sustained on these issues in the weeks and months ahead. This is particularly important as we look ahead to this year of commemoration.

 

Human Rights in an era of austerity

Policing and indeed other public services are facing huge austerity which is forcing our organisations to make significant changes in the way we deliver services. I am grateful that the most recent budgetary settlement was not as bad as had been forecast; however the fact remains that by the end of this financial year, the PSNI budget will have been reduced by £120m since 2013-14.  With cuts of this magnitude, we have been forced to prioritise service delivery in a way that policing has never had to do before in Northern Ireland.

At the same time as the budget has been shrinking, the demands to which my organisation must respond are increasing in scale, breadth and complexity. We deal with everything from abandoned vehicles through to international criminal gangs trafficking human beings within our community. We strive not only to deliver visible neighbourhood policing but also to protect the vulnerable behind closed doors, from crimes such as domestic or child abuse. Modern crime types, such as cyber and financial crime, are emerging and changing all the time.

I have two major responsibilities – firstly, as a Police Officer, I have a duty to keep people safe across all of these demands; and secondly as the PSNI’s Accounting Officer, I have a duty to manage the organisation’s budget responsibly. Balancing these two responsibilities has been, and will continue to be a key issue for the PSNI in the months and years ahead.

 

 

In my time as Chief, I have had to make some very difficult decisions about how I appoint my finite financial and human resources to keep people safe from harm. Human rights have played a critical role in these difficult decisions but they do not exempt me for my budget responsibilities.

I have told both the Justice Minister and Policing Board members that I will not compromise on keeping people safe. When it comes to a clear threat to life, there is little doubt that, the PSNI would and could take whatever action was required to protect life – including a budgetary overspend. Case law in this area is not definitive but I would need to demonstrate that the circumstances were such that it was absolutely clear that additional expenditure was necessary to protect life.

However, when it comes to the day to day management of threat, risk and harm – while human rights will guide our resourcing decisions – it is not an excuse to justify spend that I simply don’t have or investment in resources that I know I cannot afford in the future.

Human rights and dealing with the past

This is an issue which has been discussed recently with the Policing Board in relation to the level of staff and resource that the PSNI can put to dealing with the past. As yet, there has been no agreement on dealing with the past.

While I will continue to hope that a political solution can be found, for every day that goes by without resolution, the PSNI is left to absorb substantial costs in relation to dealing with the past. It is a fact that every penny and person I invest in the past is an investment I am not making in keeping people safe today. By way of illustration of the very real dilemmas this presents, there are around 50 investigators working in Legacy Investigations Branch; while our Human Trafficking Unit consists of eight officers working on 16 ongoing investigations; and within our Public Protection Branch, approximately 60 police officers are dealing with over 1200 Child Abuse Investigations and just over 30 police officers are dealing with over 300 domestic abuse investigations.

I and my Senior Colleagues appoint our finite resources according to threat, risk, harm and vulnerability. In times of high demand – for example we had two murders in one week at the beginning of this month – we need to be able to move our people to the areas of greatest need. This means that detectives will, from time to time, be diverted from policing the past to present day investigations – be they investigations into murder; child abuse or a serious cyber-crime attack.

Do not misinterpret the points I am making as an argument against investing time and resources in dealing with the past.  The argument I am making is one that I have made on many occasions before – the public services of today, including the Police Service, are not constructed or suitably resourced to respond to the demands of dealing with the past.

 

Aside from the financial and human resource costs, the past also presents significant costs in terms of public confidence in policing.  PSNI’s legacy related work is facing almost weekly legal challenge, related predominantly to the speed at which we can conduct the significant volume of legacy related work; and the perceived independence of the Police Service to do it.

This is an extraordinarily challenging area for me as Chief Constable. I have on a number of occasions sought legal advice as to my obligations and independence when it comes to investigating the past.

But the answers are not always immediately clear. The precise extent of the investigative obligations arising from Article 2 of the European Convention on Human Rights is a complicated and developing issue, the final determination of which can only be made by the courts. There are a number of ongoing judicial proceedings in this area, and I look forward to the legal clarity that these will bring.

But, while we wait for judicial clarity, the current legal advice is that PSNI’s Legacy Investigations Branch is Article 2 compliant. I accept that many people would disagree with this position; however, in the present situation, I have no options but to fulfil my statutory responsibilities to the best of my ability within my current budget.

My legal responsibilities cut across a wide range of legislation including the European Convention of Human Rights, the Police Act, the Coroner’s Act, the Justice Act, the Data Protection Act and the Freedom of Information Act.

Until there is a political resolution on dealing with the past, PSNI’s focus must be on what we are legally required to do. This includes our disclosure duties to the Coroner as well as the duty to provide adequate protections via proposed redaction to any information that is disclosed. We are also legally required to complete investigative actions which have been directed through various accountability mechanisms including, the Bloody Sunday Investigation; the Military Reaction Force Investigation, investigations emanating from the Boston College tapes and the On the Runs Review.  We must fulfil our Section 35(5) duty to provide information to the Director of Public Prosecutions in an increasing number of cases including the recent and very public referral to the activities of the individual referred to as Stakeknife.

While we will continue to do our best, at present, we do not have the human resource capacity allocated to legacy to allow us to meet all these legally required duties at the speed that I would like. While resourcing levels are kept constantly under review, such is the scale of the demand a level of delay is almost inevitable.

There are also almost 1000 cases for which there had been no Historical Enquiries Team review. These cases were due to transfer to the Historical Investigations Unit; a process that is now on hold due to the ongoing political impasse. But my statutory responsibilities do not require me to continue the work of HET; nor can I afford to take on the scale of this additional responsibility.

 

Instead, PSNI’s Legacy Investigation Branch will use a Case Sequencing Model to bring to the fore those relatively small number of cases which have the greatest potential to bring offenders to justice, particularly those who continue to be involved in serious crime today. Progressing these investigative opportunities is entirely in keeping with our statutory requirements

The very cold reality is that criminal proceedings are increasingly unlikely in the vast majority of cases. While some cases will lend themselves to further progress through the judicial system, with forensic science providing the greatest chances of success, these cases are likely to be very few in number. I know this is difficult for many people to hear. But I would rather be honest than compound the hurt of so many people who have suffered so much.

As a human being, I want to be able to help all those who have suffered; I want to be able to provide answers to those who continue to have questions about what happened to their loved ones.  But, as Chief Constable, I know that the holistic solution required cannot come from the Police Service.

From where I sit, it is clear to me that the processes of law, including Human Rights law, can only do so much. They are not in themselves capable of healing the hurt caused by our conflict. It was for this very reason that I was so supportive of the range of institutions for dealing with the past which were outlined in the Stormont House Agreement. The proposals in that Agreement provided for a much more holistic approach to the past.

I fully accept that reaching agreement on this challenging issue is not easy. But, the current hiatus is unfair on everyone – unfair on grieving families and unfair on the public services of today who continue to pay a price in terms of budget and public confidence. I encourage our politicians to continue to talk and to try to resolve their differences and make progress on this challenging but critical issue. Finding a way to deal more roundly with our past is the greatest progress that we could make towards the safe, confident and peaceful future we all desire.

Conclusion

Having taken more than my fair share of your time this morning, I will draw my points to a close by repeating my belief that the basic principle of policing is protecting human rights; and human rights are an enabler of effective policing. I have no doubt that PSNI and the community we serve have benefitted tremendously as a result of the embodiment of human rights within policing.

 

As I said earlier, nothing worth doing is ever easy. Operationalising human rights requires constant effort; it is a job that is never truly complete; and therefore something to which we will never reduce our efforts.