18 September 2008 Edition
Recovery or cover-up? The truth about the Historical Enquiries Team
BY LAURA FRIEL
A BIG question mark has always hung over the PSNI’s Historical Enquiries Team (HET) and its ability to resolve some of the outstanding issues around state killings and collusion with unionist paramilitaries. Indeed, the HET’s initial remit specifically excluded victims of state violence because it refused by default to classify any killings carried out by the state as murder.
Of course, to hold on to such a flawed paradigm would have been fatal and it wasn’t long before the PSNI had to revise its position to include all conflict-related killings.
The HET was established in 2006. While most republicans and many families of victims were highly sceptical, the search for closure proved to be a compelling dynamic and a lot of families and their supporters have subsequently engaged with the HET.
Criticised by the European Court of Human Rights for failing to properly investigate state killings, the British Government saw the HET as a mechanism with which to persuade the Council of Ministers that they were now meeting their obligations. And, post-Stevens investigations into British forces’ collusion with unionist paramilitaries, the British needed some mechanism to deal with continuing allegations of collusion and state murder as well as addressing Peace Process commitments to dealing with the issue of victims.
In other words, the HET was established against the backdrop of growing political and legal pressures on the British Government to be seen to be doing something. But just what it has been doing has remained largely unknowable, at least until now.
This week saw the emergence of a detailed research paper on the workings of the HET by Dr Patricia Lundy from the Sociology Department of the University of Ulster. Lundy, who appears to have been given unprecedented access, studied the HET over a period of two years before writing one of the most damning assessments of the HET to date and what, unwittingly, may prove to be its obituary.
Yet Dr Lundy seems to have been a reluctant whistleblower. Her research only came into the public arena after it was published online by an international law journal and she was asked to brief the Irish Government in relation to the British Government’s claim that the HET meets its European obligations of independent investigation into state and alleged state-sponsored killings.
The report, Can the Past be Policed?, investigates a series of straightforward issues: the personnel, structure, methodology and ethos of the HET. It studies the collecting of evidence, access to intelligence, decision-making, and the process of delivery and outcomes. The research paper identifies the HET’s political priorities and highlights disparities in its claim to be putting families first.
And at almost every level the study finds the HET so fundamentally flawed that the picture that emerges is of an organisation primarily designed and operating to protect the British state and its operatives against being exposed in any wrongdoing.
In terms of HET personnel, at the top both the director and deputy director are former members of the Stevens Inquiry Team. Significantly, the Stevens Inquiry did not lead to disclosure but simply became part of the collusion cover-up when the British Government refused to make its findings public.
The HET is directly accountable to PSNI Chief Hugh Orde, another senior member of the Stevens team, and the British Police Inspectorate chief Sir Ronnie Flanagan, former RUC Chief Constable and head of Special Branch.
The senior management of the HET is also made up of former Stevens Inquiry members, RUC Special Branch and at least one former member of the British Ministry of Defence who had been stationed in the Six Counties during the conflict.
The overwhelming majority (87 per cent) of those working within the HET are retired cops and the majority of those cops are former members of the RUC and RUC Special Branch.
The report talks of “the strategic positioning of former RUC officers and particularly those with a Special Branch background” and concludes that this “not only undermines actual but also perceived independence”.
Within the HET there are four teams of ‘investigators’. The Purple Team is mostly made up of ex-RUC. The Red Team is made up of former British cops. British cops are classified as “external personnel” and on that basis the Red Team is regarded as “independent”.
Such an assumption would be open to question anyway but research discovered endemic cross-contamination between the Red and Purple Teams, with British cops being actively encouraged to rely upon their more ‘experienced’ former RUC colleagues and both teams sharing offices and engaging in case discussions.
Two other groups deal with the politically most sensitive cases. The White Team is located in London and is responsible for cases with an EU dimension. The report describes the ‘successful’ delivery of cases that have been brought to the notice of the European Court of Human Rights as of “major strategic importance” to the HET and, presumably, the British Government.
“The ECHR cases have been a key driver in the HET process. The HET are acutely aware of the extreme sensitivity of the cases under review and their likely political ramifications, particularly in the ECHR context.”
The Complex Team emerged as a response to Operation Ballast (the Police Ombudsman’s report into the role of a British agent in the murder of Raymond McCord) and deals with cases where there are allegations of collusion and involvement of state agents.
The way in which the HET is structured betrays an underlying political agenda that has nothing to do the projected profile of the HET as primarily concerned with facilitating closure for the families of victims.
While the HET claims to be ‘family centred’, there is no mechanism with which any family unhappy about the way HET is handling their case can hold them to account. The HET was set up by the PSNI, is funded out of the PSNI budget, and is directly accountable to PSNI Chief Constable Hugh Orde.
It is made up of former police officers employed to do what is essentially a policing job while working within a policing and criminal justice protocol. But members of the HET are not police officers and cannot be investigated or held to account by the Ombudsman. This kind of official sleight of hand is indicative of cover-up, not truth recovery.
As recently as last week, the deputy director of the HET (who until now had been seconded from a British police force and so remained subject to mechanisms of police accountability) ‘retired’, a move that allows him continue his role within the HET free from scrutiny by the Ombudsman.
The report identifies key gatekeepers both within senior management structures and particularly in relation to access to intelligence. Almost all access to intelligence is controlled by former RUC Special Branch officers.
The study points out that “intelligence is critical in providing answers to all areas of enquiry but particularly in those cases which are regarded as controversial or where there are allegations of collusion”.
But research found intelligence was more available for incidents carried out by paramilitaries than crown forces. There was a lower rate of disclosure in relation to state killings. The report concludes that the HET is operating within a “super-cautious and heavily-censored” system.
The HET promotes a sense that it is working towards the maximum possible disclosure but in fact there are multi-layered mechanisms of control that work to restrict access to information and intelligence. The research highlights the role of what are identified as “intelligence gatekeepers”.
A requirement of the DV vetting status needed to access intelligence restricts information within the HET and skews access towards former Special Branch officers and other ‘senior’ intelligence operators. In other words, access to the most sensitive and politically damaging material is restricted to the former intelligence elite most closely associated with collusion and cover-up.
The report says:
“It appears that the ‘old guard’ play a key role in the management and access to intelligence and perform a censoring role in respect of disclosure.”
The study concludes that structural mechanisms and the employment of former members of the RUC and RUC Special Branch have “compromised the real and/or perceived independence and integrity of the HET”.
It also exposes the HET’s reliance upon a “corporate memory” in which personnel are encouraged to seek out and rely upon the advice and experience of former members of the RUC and Special Branch.
“The problematic nature of relying on corporate memory is self evident,” says the report, and the result is that the “official police discourse is heavily reliant on specific constructs of history which extols the virtues of the security forces”.
It concludes from this:
“Reliance on RUC corporate memory and the absence of a counter-discourse or counterbalancing memory is a fundamental weakness in the work of the HET.”
Another identified problem is the HET’s relationship with other “partner state institutions”. The study exposes the HET’s relationship with the British Army, Ministry of Defence, MI5, MI6, the Public Prosecution Service and PSNI as based upon a “gentleman’s agreement” in which the HET is careful not to tread on their toes. In fact, the HET admits to deliberately framing their reports to avoid antagonising other “partner” groups.
“Some of these agencies,” the study says, “were themselves participants in the conflict and are regarded by sections of the community to have been involved in violations and/or colluded in various ways.”
The failure of the HET to assert independence from other “partner state institutions” is clearly illustrated in the way in which the HET collected evidential material from former RUC and now PSNI premises and in their timid approach towards the British military.
One of the first tasks the HET set itself was to gather all material and information relevant to the cases they would be ‘reviewing’ that lay dormant in police storerooms across the Six Counties.
The task involved the locating, retrieving and cataloguing of thousands of documents and exhibits. The intelligence manager in charge of the task, himself a former member of the RUC, employed 33 other former RUC members to search for and collect the material.
Despite the HET’s professed adherence to standards likely to secure convictions, the collection team failed to take proper measures to ensure that the material remained uncontaminated and tamper-free.
Items earmarked for collection were placed in sealed boxes but left in situ and not removed for over a year. In other words, key information and exhibits may have been in the possession of former RUC officers, some of whom may have had responsibility for the cases under review.
The boxes are described by the report as “on more than one occasion” being “emptied of their contents in the police stations where they were stored awaiting collection. This raises serious questions about the integrity of exhibits.”
And as if failure to secure exhibits wasn’t enough, the damage to the HET is compounded by the fact that one of its officers is currently under investigation for allegedly tampering with witness statements, lying under oath and taking part in a deliberate and calculated deception in relation to the Omagh trial.
The HET’s dealings with the British military are just as questionable.
As a response to the establishment of the HET, the British Army set up its own ‘review’ body to deal with records for 1969 to 1998, the duration of the conflict. The British Army’s ‘Historical Information Team’ (HIT) appears to have been specifically established to act as a barrier to HET access to military records. In 2006, the HIT informed the HET that all British Army records between 1969 and 1975 had been destroyed. The destruction continued until the Freedom of Information Act in 2005 compelled the British military to retain all subsequent documentation for 30 years.
Requests by the HET to the British Army to trace former and serving British soldiers are almost without exception unsuccessful. Identifying British soldiers who gave evidence or statements to courts, inquiries and coroners has been rendered perhaps impossible because the British Army destroyed all records of just who ‘Soldier A’, B, or C really were.
The HET has made no attempt to trace British soldiers themselves and, despite a commitment to openness and transparency, it didn’t inform families of its inability to trace military personnel until September 2007.
The report accuses the HET of “slavish adherence to procedure regardless of outcome” and suggests the HET might be “simply going through the motions”, which include “stalling, inaction, unjustified delay or being complicit in the shielding process”.
Scrutinising the HET’s methodology, the report is critical of the decision to work within a judicial framework. Such a framework would be appropriate where there were opportunities to pursue prosecutions but, as Lundy points out, even the HET agrees there is almost no opportunity.
It seems the adherence to a judicial imperative, since it clearly is not about securing convictions, is most likely another mechanism for controlling procedure and information. In other words, the HET isn’t being rigorous by adopting exacting judicial standards but rather is engaging in a rigid and hierarchical mechanism to avoid disclosure.
Review of a case by the HET can only be triggered by two mechanisms: potential prosecution which has been widely accepted as invalid, and as a response to specific questions presented by families.
This places almost the entire onus of any review on the families of victims to come up with the right questions, a task made all the more difficult by the fact that families do not have recourse to prior information which would allow them to field and frame their questions.
Blind questioning and second-guessing, however astute, are not adequate mechanisms to recover the truth, especially where the state and its agencies have many reasons to hide information. Rather than truth recovery, the study identifies public relations and building public confidence in policing as key strategic objectives within the HET.
“It would appear that the HET’s role in manufacturing legitimacy in policing has resulted in political decision-making that has compromised its integrity.”
The study is equally damning in its scrutiny of results and outcomes. The report describes the HET’s process as “essentially a desk-top review” and accuses officers of “a very creative use of language” to disguise the limitations of their method.
Reports presented to families are described as “story boards” and the study finds that families were generally not given any new material. The HET, it appears, is simply repackaging information already available in the public domain. Effectively what is on offer is a belated official ‘stamp of approval’ for what is mostly already known.
This does not comply with the European Court’s ruling on the British Government’s international obligation to conduct proper and prompt investigations into controversial killings, especially where the state is responsible or complicit in the death.
And as this report clearly shows, the HET is not Article 2- compliant and does not meet the Council of Ministers’ requirement of independence.
It is hard to see where the HET can go from here. Of course, the PSNI and British Government will be tempted to play down the findings of the report, but the case against the HET appears to be irrevocably damaging.