Collusion revelations highlight need for independence of new investigations

On Monday the RTÉ documentary Collusion quoted the former head of the RUC special branch, Raymond White, as saying the message he received from the then British government on the collusive use of agents was: "Carry on – just don't get caught."

The documentary added more detail to the disturbing picture that is emerging of the significant and illegal role of British agents during the Northern conflict. It is now clear beyond doubt that both RUC and British army secret units were running agents who were involved in serious criminality including murder. Some agents were used to import weapons which were later used in scores if not hundreds of murders; others were used to channel intelligence from the security forces to those who targeted victims.

After a period of limbo we have, in the Stormont House agreement, provision for a new historical investigation unit (HIU). We may perhaps, at last, have a means of getting at the truth of the UK state’s involvement in what was rightly called a “dirty war”. But will the new unit be sufficiently independent to carry out effective and credible investigations?

That collusion was widespread is now undisputed. What we don’t know, and need to find out, is the extent to which it was sanctioned at the highest levels. How much did government ministers know about what was going on? Documents revealed by the De Silva review into the Pat Finucane case also show that government ordered that “officials should not participate in the drawing up of guidelines which condone the committing of criminal offences”. This had the effect of allowing the practice of collusion by security forces with paramilitaries to continue without any regulation.

Package of measures

In spite of the growing evidence, there has never been a serious attempt to bring to justice those involved in state-sanctioned murder. The UK state has not yet implemented its legal duty to investigate properly all unresolved deaths which happened during the conflict. In 2001, in reference to a number of cases brought by the Committee on the Administration of Justice (CAJ) and others, the European Court of Human Rights demanded independent, prompt, effective and transparent investigations. The UK responded with a “package of measures” that has failed to meet that requirement.

In 2008 the UN Human Rights Committee urged the UK to conduct: “as a matter of particular urgency given the passage of time, independent and impartial inquiries in order to ensure a full, transparent and credible account of the circumstances surrounding violations of the right to life in Northern Ireland.” So complete has been the failure to do this that the CAJ believes there has been a policy of cover-up that has led us to call the current approach an “apparatus of impunity.”

Indeed, during his visit to Belfast last year, the Council of Europe’s commissioner for human rights, Nils Muiznieks, stated that “until now there has been virtual impunity for state actors”.

The obstruction of inquiries, destruction of records, loss of forensic evidence and refusal to disclose information has already implicated all branches of the state, from government departments to secret agents. The cases which will have to be investigated by the HIU will rely heavily upon the disclosure of historic intelligence and operational files.

These include the files of the Stevens and Stalker/Sampson inquiries, all special-branch records (that have not already been destroyed), other intelligence reports and many ordinary police records. Problems over disclosure of these and other materials have manifested themselves in massive delays in inquests and other investigations.

The archives are overclassified as top secret, redactions are unnecessarily large and the resourcing of the disclosure obligation is inadequate. Recently, until legal action was taken, the PSNI refused to share “sensitive” intelligence with the police ombudsman, citing conflicting legal duties. The manipulation of access to intelligence material and other records is now an open scandal. It is a keystone of the apparatus of impunity.

The guardian of this huge cache of information is currently the legacy support unit (LSU) of the PSNI. This is staffed by a mixture of civilian staff, lawyers and serving police officers. What is critical is that key positions are held by former RUC special-branch officers. There is a clear potential conflict of interest here in relation to investigations which may directly and indirectly feature their former colleagues as criminal suspects. Their presence prevents the PSNI from being able to conduct investigations into the past with the required degree of independence.

The great danger is that this LSU will continue to have some role if and when the new HIU is established. If yet another mechanism is tainted by a perceived lack of independence, it will be a colossal let- down for victims. Perhaps more importantly it will create a crisis of confidence in the rule of law that could have a knock-on effect for all the institutions of our still fragile, post-conflict society.

Willingness to be open and transparent

PSNI Chief Constable George Hamilton told the RTÉ documentary he wanted to hand over the entire “vault” of millions of documents to the new HIU. He has shown a willingness to be open and transparent but there may be other forces at work who wish to maintain a means of frustrating attempts to shine a light on the past.

The CAJ has been working with academics and other experts on preparing a model Bill to implement the Stormont House agreement and we have been liaising with the officials preparing the legislation. One of our key recommendations is that no-one who has worked in the past in the RUC or British military units deployed in the North should be employed by the new unit. The same exclusion should go for anyone convicted of membership or actions committed on behalf of an illegal organisation. Only if we can be sure that the investigators have no connection with those being investigated can we be confident of the independence and impartiality of this initiative.

This new process must allow a light to be shone on all of the violent acts carried out during the years of conflict – including those deeply embarrassing for those who were meant to uphold the law.

Brian Gormally is director of the Committee on the Administration of Justice, an independent human rights organisation in Northern Ireland