
By Jamie Bryson
The Court of Appeal today heard the case of Brown, in which the widow of Sean Brown at first instance had benefitted from a mandatory order requiring the Secretary of State to establish a public inquiry into the killing of Mr Brown, and that judgment was then appealed. For this contribution, I do not venture into the merits or otherwise of the case, which is awaiting judgment from the Court of Appeal.
Rather, I focus on the somewhat extraordinary intervention of the Chief Constable who had publicly expressed support for a public inquiry. It should be said that I find Jon Boucher a superb Chief Constable. I think he is honest, strives to be fair and to police without fear or favor. He is the type of strong principled leader the PSNI needed following decades whereby policing had become seriously imbalanced and focused on maintaining- at all costs- the support of the nationalist/republican community. That there was two-tier policing can hardly be disputed.
I do not impugn Jon Boucher’s motives for his intervention, nor do I say that he had any political agenda, but acting in good faith does not insulate anyone from error. In fairness to the Chief Constable, I imagine he is the type of leader who welcomes being challenged and who is willing to engage with viewpoints which differ to his own.
It appears uncontentious to observe that the Sean Brown campaign is one with a political context. It has taken on unique prominence for legacy campaigners who subscribe to the controversial nationalist version and interpretation of the conflict in Northern Ireland. It is equally uncontentious to point out that for many outside that activist section of the nationalist/republican community, that particular version and interpretation of the past is viewed as little more than re-writing history and political propaganda for the nationalist/republican ‘cause’. Those fundamental differences of view are unlikely to ever be reconciled and in this article I do not enter that debate, save for as to say my view of the past- and the activities of nationalists/republicans and their legacy activists- is well known, and I do not resile from any previous analysis or commentary in that regard.
In light of the foregoing context, it ought to be obvious to the Chief Constable that regardless of his motive (which I do not impugn), the taking of such a public position, described by Lord Justice Treacy as ‘exceptional’, on a matter which has- rightly or wrongly- a controversial political context and which is outside his statutory responsibilities, is at best unhelpful in respect of the PSNI maintaining the support of all sections of the community.
In addition to that point, there is a more fundamental constitutional issue. The decision on whether to hold public inquiries under the Inquiries Act 2005 is a matter of political judgment (within lawful limits) that resides in the realm of Government decision making. In the instant case, it is a matter squarely falling within the legal powers and duties of the Secretary of State (hence why the Secretary of State is the respondent to the legal challenge). The Chief Constable has no statutory function in respect of decision making as to whether to call a public inquiry and it seems constitutionally improper that a public view, much less a controversial one, should be offered on how the Secretary of State should exercise his decision-making powers in that regard.
There may (or may not) be good reasons for the Chief Constable to hold that viewpoint, but there are equally good reasons as to why he ought not to- at least publicly- express it. In doing so, he turbo-charged a nationalist demand for a public inquiry in the Sean Brown case (and, leaving aside the manner by which the case has been weaponised by nationalist/republican legacy activists, Mr Brown’s family have a right to justice the same as every other victim’s loved ones).
The consequence of the Chief Constable’s contribution was that the applicants in the Sean Brown case were able to make the submission to the court that this was an ‘exceptional’ case, and one basis for that submission was the view expressed by the Chief Constable. It was also pointed out that Michelle O’Neill had called for a public inquiry, but a republican joint-First Minister calling for a public inquiry into everyone other than the IRA is the norm rather than being an exceptional feature.
The position the Chief Constable has now placed himself in is that nationalist/republican legacy activists are using his comments to turbocharge their campaign, which has a political context and agenda underpinning it. That at a minimum creates the perception that the Chief Constable is aligned to that campaign (of course, he is not, at least not as a matter of politics, but perception matters). It is of course entirely legitimate now for the families of those murdered by the IRA- and who have never had justice much less the extent of inquiries and reports that nationalist/republicans have had- to call on the Chief Constable to publicly support an inquiry into the deaths of their loved ones.
This is the problem once the Chief Constable begins expressing views on matters outside his statutory responsibilities, how does he now with credibility not give an assessment the next time a family comes forward- perhaps one who lost a loved one at the hands of the IRA- as to whether they should have a public inquiry?
Therefore, it appears the Chief Constable has, perhaps with the subjectively defined best of intent, taken a misstep. He now finds himself in the arena of political decision making, and that is never a solid foundation upon which to sit for policing.