Commission on Security and Cooperation in Europe

Testimony :: Hon. Christopher H. Smith
Chairman - Helsinki Commission

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The purpose of today’s hearing is to examine progress made in establishing a human rights-based approach in policing in Northern Ireland and to explore remaining problems that must be addressed in order to secure maximum accountability and public confidence in the Police Service of Northern Ireland.

That we have with us today a representative from the US State Department and the Police Ombudsman for Northern Ireland – the head of the primary institution for police accountability – is indeed progress itself. For today’s hearing is the eighth that I will be chairing on human rights in Northern Ireland. At each hearing, policing and police reform has been a central theme. Each time we invited a representative from the State Department and on a few occasions we invited representatives from the policing institutions in Northern Ireland. In the past, we have heard from such brave and heroic individuals including Rosemary Nelson, Geraldine Finucane, Diane Hamill, Michael Finucane, and Eunan Magee, as well as Christopher Patten, a distinguished statesman and author of the Independent Commission on Policing for Northern Ireland. So we are grateful to have Dr. Reiss and Mrs. Nuala O’Loan with us today.

In the most recent report submitted by former Oversight Commissioner, Tom Constantine, he concluded:

“...in fact the institutions are doing quite very well in fulfilling the Independent Commission’s recommendations.

All institutions continue to make excellent progress in implementing a programme of change in policing that may be the most sweeping and complex ever attempted in a modern society. However, the role of the Oversight Commissioner is to point out those recommendations that remain unfilled. At this stage of the change programme, four years after the release of the Patten report, the lack of significant progress on some of these important recommendations is of serious concern. Nonetheless, although there has been a lack of progress on several recommendations, it is important to consider these shortcomings in the context of what can only be described as general and substantial progress.”

Clearly, much has improved since the first hearing in 1997. At the time, there was no Ombudsman’s office nor was there a Good Friday Agreement. The police seemed to act with impunity, arbitrarily arresting, detaining and intimidating those they suspected of “political” crimes. Such suspects were held in detention centers, denied timely and appropriate legal counsel, often coerced into confessions and then denied the universally respected right to a trial by jury.

Shockingly, those attorneys who stepped forward to insist on a defendant’s fundamental human rights and a fair trial often became subjects of police harassment and abuse themselves.

Police harassment of defense attorneys and their clients was the subject of our third hearing held September 29, 1998. Param Cumaraswamy, the UN Special Rapporteur on the Independence of Judges and Lawyers, testified that after a year- long investigation he found that police officers from the then-RUC had indeed “engaged in activities which constitute intimidation, hindrance, harassment or improper interference” with criminal defense attorneys.

The Special Rapporteur made many recommendations including a permanent shut down of the so-called holding/intimidation centers -- now gone; the reinstatement of the protection of the right to have an attorney present during police interrogation -- now generally respected; the reinstatement of trial by jury, and of the right of a criminal defendant to remain silent.

Of particular relevance to today’s hearing, the Special Rapporteur also recognized the inadequacy of a police complaint system in which the then-RUC essentially investigated itself, subject to a supervisory commission, the Independent Commission for Police Complaints. The ICPC could only make non-binding recommendations for action -- hardly a recipe for accountability.

In fact, Cumaraswamy reported that “of the 16,375 complaints generally received by the ICPC through 1994, not one had resulted in any disciplinary sanction against any RUC officer.” The Rapporteur strongly recommended that the office of the Police Ombudsman – which was brand new at the time – “be given the human and financial resources to meaningfully carry out its mandate, which will go a long way towards restoring public confidence in the police complaints procedure.”

We are anxious to hear from Mrs. O’Loan on that point today. We are encouraged that the Ombudsman’s office has employed a variety of methods and outcomes for police complaints and we note that her office has been more aggressive than the ICPC which preceded it. In her testimony, Mrs. O’Loan reports that over the first three years of its existence, the Ombudsman’s office has referred 374 cases to the Director of Public Prosecutions in which she recommended 40 cases for criminal prosecution. She reports further that the DPP has directed half of those for criminal charges. She reports separately that through her direct recommendations to the Chief Constable, 119 officers have been subject to disciplinary action – a vast improvement over the ICPC. We wonder though, how well the DPP is doing with her recommendations.

As a means to enhance police accountability, the Special Rapporteur also strongly recommended an independent judicial inquiry into the case of Patrick Finucane, the defense attorney who was murdered in front of his wife and children in 1989, under circumstances suggesting possible collusion by officers of the RUC.

The Special Rapporteur was not alone in his recommendation. Testifying at the very same hearing as Mr. Cumaraswamy was Northern Ireland Solicitor Rosemary Nelson. Rosemary Nelson testified in this very room about harassment, intimidation and threats against her by RUC officers simply because of the politics of her clients. She said she had been “physically assaulted” by a number of RUC officers and that their harassment included and I quote “threats against personal safety” including death threats against her.

The parallels between her situation and that of Patrick Finucane were not lost on Rosemary Nelson. She said and I quote, “Although I have tried to ignore these threats, inevitably I have had to take account of the possible consequences for my family and my staff.” She added, “No lawyer in Northern Ireland can forget what happened to Patrick Finucane, nor dismiss it from their minds.” It was clear that day that Rosemary Nelson was convinced the RUC would kill her.

Six months after her testimony -- exactly five years ago from yesterday -- Rosemary Nelson was murdered, killed by an assassin in a vicious car bomb attack. We do not know what, if any role, any RUC officer may have played in Rosemary’s death, but we do know that they did harass her, they did make death threats against her, and they did fail to protect her. The policing culture of the time, a culture of impunity, was indeed a contributing factor.

Yet, five years after Rosemary’s death, no one has been charged with murder or held accountable for threats against her life. Fifteen years after Patrick Finucane’s murder, the same is true.

Congress has tried to do its part. In 1999, Congress adopted my bill, H.Res. 128, which condemned Rosemary’s murder and called on the British government to launch an independent inquiry into Pat Finucane’s murder and an independent investigation into Rosemary Nelson’s killing. In September 2002, Congress passed and President Bush signed my legislation (Public Law 107-228; section 701) stating US support for independent judicial public inquiries into the murders of Patrick Finucane and Rosemary Nelson – as a way to instill confidence in the Police Service of Northern Ireland.


In Rosemary’s memory Congress also adopted my legislation (Public Law 106-113) which suspended US law enforcement training and exchanges with the RUC until vetting procedures were established to ensure that the programs do not include policemen who may have committed any human rights violations including “any role in the murder of Patrick Finucane and Rosemary Nelson or other violence against defense attorneys in Northern Ireland.”

It was in this room as well, at a hearing on September 24, 1999, that Commissioner Chris Patten and Commissioner Maurice Hayes came to present the findings of the Independent Commission on Policing in Northern Ireland -- 175 recommendations for a new beginning of policing commonly referred to as the Patten Commission Report. That report has become a benchmark for policing reform in Northern Ireland but many of us remain deeply disappointed by what was left out of the report such as a vetting process to rid the new Police Service of Northern Ireland (PSNI) of those who were known to have committed human rights abuses.

The Patten Commission’s inability to address the so-called “bad apples” underscores the continued reluctance on the part of some to be enthusiastic or confident about a sustained change in policing in Northern Ireland. To help build more public support and deepen cross-community confidence, the British government must release and fully implement the recommendations of Judge Peter Cory who led a recent investigation into the question of police collusion in six murders, including those of Rosemary Nelson and Patrick Finucane.

The Cory investigation was mandated by the Weston Park agreement between the Irish and British governments as a means resuscitate the stalled peace process in Northern Ireland. The Irish government has already released the two reports addressed to them and announced it would, in accordance with Judge Cory’s recommendation, establish an inquiry into one of those cases.

Remarkably, the British government has refused to report the four cases released to them. Recently it was announced that the British government will release the Cory report before the end of the month. That said, we anxiously await not just the publication of the report, but a timely implementation and compliance by the British government to establish public inquiries where recommended by Judge Cory. Anything less will surely undercut any progress made in convincing the public that their new institutions are better equipped than those of the past to hold human rights abusers accountable and to secure justice and the rule of law.

Six years into the Good Friday Agreement, policing reform continues to present the greatest opportunities -- and the greatest pitfalls -- in the quest for a just and lasting peace in Northern Ireland. Still difficult, and still incomplete, a new beginning in policing has been set in motion. New institutions and practices are underway to enhance accountability. Some of the old problems -- unchecked Special Branch powers and unpunished collusion -- hover like a storm cloud threatening a bright future. These problems must be forcefully addressed so that real policing reform can take hold – and maybe even lead the way – regardless of the delays or setbacks in the political developments in the north of Ireland.