By Jamie Bryson
The Police Ombudsman has a colourful history of public service. In 2018, as Public Services Ombudsman, Ms Anderson threatened a complainant with contempt of court, despite having no lawful power to do so.
The then Attorney General John Larkin QC had to get involved and warned Ms Anderson she “ought not to threaten citizens with contempt proceedings when there is no apparent basis for subjecting their proposed actions to such sanction”.
In 2016 Ms Anderson had previously unlawfully threatened another female complainant with the Official Secrets Act- for publishing details of her complaint to the Northern Ireland Public Services Ombudsman in relation to the health service. This, as we shall see, is ironic given Ms Anderson’s recent carelessness in her public statement.
The above two examples are just some of the extraordinary overreaches of power and apparent disregard for lawful constraints which was displayed during Ms Anderson’s time as NIPSO.
Nevertheless, Ms Anderson was appointed as Police Ombudsman, despite the errors set out above.
Last week’s report is a tour de force in overreach and political posturing. It amounts to nothing more than a legacy narrative, going far beyond anything the Ombudsman is supposed to be doing. In short, she has taken for herself powers that Parliament did not give her.
Subsequent to the publication, Ms Anderson was quoted in the media giving an analysis of her personal emotions in carrying out the investigation. She described, amongst other emotions, as feeling “numb” by her findings. Interesting as all this is, what has the personal emotional responses of Ms Anderson got to do with her discharging her statutory role as Police Ombudsman?
The Ombudsman acknowledges in her report that she has no statutory power to make determinations on ‘collusion’- that politically charged catch phrase without any definition in statute or common law. It means whatever nationalist legacy activists want it to mean.
However, this acknowledgement appears little more than window dressing given the Ombudsman then goes on to set out her chosen definitions of collusion, then effectively changes the terminology to ‘collusive behaviours’, and proceeds to make determinations on that new cover word for ‘collusion’.
Put simply; she has substituted ‘collusive behaviours’ for ‘collusion’. The effect is the same, and it really is a rather stark subversion of the clear judicial determination on the scope of the Ombudsman’s powers.
Let us remember what the Police Ombudsman was set up to do. It was to provide accountability to present day policing. Instead, it has been turned into a tool for nationalist legacy activism against the RUC, and loyalists.
Despite having absolutely zero remit to investigate anyone other than police officers, the Ombudsman has in fact set itself up as some form of legacy narrator- carrying out investigations into the actions of loyalists, which go far beyond having any discernible link to the actions of police officers.
The fatal flaw in the Ombudsman’s structure is that the complainant (other than cases initiated via the Ombudsman’s own motion) sets the parameters for the investigation. Nationalists have become extremely effective at framing complaints in a manner which gives the Ombudsman maximum scope. In short form, the standard nationalist approach is to allege ‘collusion’ in relation to murder/s [x]. That therefore effectively allows the Ombudsman to investigate the entire murder/s [x], under the auspices of exploring whether there was any ‘collusion’.
The scope of the investigation is therefore so broad, it is effectively unconstrained. Given that ‘collusion’ means whatever the accuser wants it to mean, it is to all intents and purposes a blank cheque. And it is a blank cheque that successive Police Ombudsman have been only too willing to cash in as purely political capital.
We therefore find ourselves with a stream of Ombudsman reports which are in substance little more than legacy narrative framing. Indeed more than that, often they are basically cold case criminal investigations, without any parameters, lawful constraints, procedural fairness or requirements for hard evidence to support the conclusions/determinations arrived at.
In the most recent report collusive behaviours encompassed apparently obvious criminal behaviour such as a police officer being spotted having a beer in a local pub (very cloak and dagger- meeting in a local pub) with someone who police intelligence assessed as a loyalist. Yes, really.
I will resist the temptation to canvass the point in detail, but will simply point out that convicted IRA terrorists are on the policing board, and other IRA ‘personalities’ are regularly having tea and buns with senior PSNI officers, even posing for pictures with them for social media.
If an RUC officer is guilty of collusion for having a pint with a loyalist from his community in a public establishment, then what of the PSNI’s continued engagement with prominent members of the IRA (such as Harry Maguire, Sean Murray etc) and Gerry Kelly (Old Bailey bomber who shot a prison officer in the head) sitting on the policing board?
If the Ombudsman is going to create a standard, then that standard must be applied equally. Perhaps someone should reduce it to the absurdity it is by asking for the Ombudsman to apply it to the PSNI’s engagement with republicans in the present day. Good for the goose, good for the gander.
In addition to the fatal flaws throughout the entirety of the recent report, there is a further cardinal error. The Ombudsman has effectively jigsaw identified loyalists whom she views as ‘suspects’. It should be noted that the Ombudsman effectively carries out her own subjective investigation into these ‘suspects’, going far beyond her own remit.
In complete carelessness, Ms Anderson has used snippets of information from Court judgments where names are unredacted, and simply substituted the persons named for a cipher. And, of course, the person behind the cipher is then easily identified. The problem with this is that once identified in one portion of the report (the underlying basis of which may already be in public domain), the person given the cipher is then easily identified in other parts of the report (which is most often not already in the public domain).
The Ombudsman therefore has created an Article 2 risk for a number of persons, based often on nothing more than snippets of intelligence and supposition, none of which amounts to anything near sufficient evidence to arrest let alone charge any person with a criminal offence.
It seems the Ombudsman ought to threaten herself with the Official Secrets Act.