TABLE OF CONTENTS

• INTRODUCTION
• THE VETTING PROCESS
• Structure
• A Vetting Unit
• Vetting as a Requirement
• Procedural Safeguards
• Publication
• Process: Sources of Information
• Classified Government Documents
• Civil Actions
• Evidence of Illegally Obtained Confessions
• Inquest Depositions
• Official Complaints
• Investigative Files of the Director of Public Prosecutions (DPP)
• Routine Police Files
• Community Consultation
• Input from Nongovernmental Organizations
• CONCLUSION

INTRODUCTION

The historic Good Friday Agreement states that the Independent Commission on Policing for Northern Ireland must work to ensure that future policing structures and arrangements result in a policing service that "operates within a coherent and co-operative criminal justice system, which conforms with human rights norms." This imperative exemplifies the parties' commitment to a number of basic principles that guide policing in a democratic society, including the protection of life, non-discrimination, and respect for civil liberties and human rights. Police officers in a democratic society must be committed to these principles. Those recruits and officers who fail to conform to principles of democratic policing must be held accountable and, in some cases, excluded from police service.

Throughout much of the conflict in Northern Ireland, the Royal Ulster Constabulary's (RUC) top priority has been quasi-military, anti-terrorist policing to maintain state control in the face of acts of political violence. A number of contributing factors have resulted in persistent and credible allegations of human rights violations by RUC officers throughout "the Troubles." Emergency legislation that abrogated a number of fundamental due process guarantees degraded the rule of law. A general atmosphere in which persons suspected of political violence were stripped of fundamental rights emboldened some RUC officers who routinely harassed and intimidated people on the streets and in their homes, physically and psychologically abused detainees in special holding centers, and possibly colluded with loyalist paramilitary groups targeting republicans. The composition of the RUC, which is approximately 93 percent Protestant, also exacerbated tensions as the force was largely drawn from "one side" of a divided community. Credible allegations of discrimination by RUC officers against the nationalist minority community have thus plagued the RUC. Moreover, police officers learned--as did the community-at-large--that the police could commit human rights abuses in an atmosphere of virtual impunity. So-called accountability mechanisms vested with monitoring allegations of police misconduct proved woefully ineffective and legitimate charges of political influence were leveled at such bodies as the Police Authority for Northern Ireland (PANI) and the Independent Commission for Police Complaints (ICPC).

Impunity for human rights violations has no place in a society governed and policed by democratic principles. In the post-conflict period, affirmative steps must be taken to demonstrate to all segments of the Northern Ireland community that the police have assumed a new mission of public service, not state control. As an important first step in this confidence-building within the wider community, police officers responsible for human rights violations must be held accountable for abusive practices. Whatever form the policing service takes in peace-time Northern Ireland, the force must be vetted for those officers with a history of abuse. The transition from conflict to peace provides all state institutions with the opportunity for a fresh start. Thus, it is important to recognize the benefits that will accrue to the police force itself from such a vetting process. The RUC has been plagued by allegations of abuse. It is essential to rebuild trust and credibility in one of Northern Ireland's most important institutions because an impartial, professional and effective police force is imperative to ensure a lasting peace.

This briefing paper on vetting the police force is a starting point for a discussion about how any policing service under the future policing arrangements and structures contemplated by the Good Friday Agreement can operate with an officer corps free--to the greatest extent possible--of human rights abusers.

THE VETTING PROCESS

Human Rights Watch takes no position on the form the policing service should assume in post-conflict Northern Ireland. We do not engage in the "reform versus disbandment" debate. Whether the force is reformed internally and affirmative steps are taken to attract Catholics, women and other minorities to the policing service, or the force is completely demobilized and starts from the bottom up with an entirely new pool of applicants, including former RUC officers, a vetting process that evaluates each and every RUC officer who served in the past and each new recruit will be essential. For new recruits, the vetting process will necessarily consider a number of indicators, including, inter alia, psychological suitability, past criminal offenses, and perhaps knowledge of the requirements of Northern Ireland's new political arrangements and their impact on law enforcement. For RUC officers who have served in the past and wish to continue serving or, in the case of total demobilization, for those officers who choose to reapply to a newly constituted policing service, the primary vetting criterion (in addition to those listed above) should be whether or not those officers were implicated in human rights abuses during their previous tenure as a police officer.

Vetting the police force is a technically demanding and politically charged task. Not every currently serving officer who has had a complaint lodged against her/him should be prohibited from serving on a peace-time force nor should every officer against whom a complaint has been substantiated be presumptively prohibited from police service. Complaints against officers should be seen as "red flags" that might indicate an officer's abusive tendencies. Other legitimate sources of information (see below) should be also consulted and a general profile of an officer created to determine whether or not past abuses committed signal to the vetting unit that an individual officer should be excluded. Exclusion should be based on patterns of abuse and/or the gravity of an offense in the particular circumstances under which it occurred. Strict criterion and procedures should govern what constitutes a "substantiated" claim of abuse but standards of proof should not be so high as to exclude virtually all claims based on "lack of evidence."⁽¹⁾ A vetting unit would seek information about rights abuses by police officers that contravene the human rights protections guaranteed by, for example, the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT) and international standards governing the use of force. The types of abuses by the police that Human Rights Watch and other international bodies and nongovernmental organizations have documented include the excessive use of physical force, the illegal use of plastic bullets, physical and psychological abuse in the holding centers, coercion of confession evidence, sectarian harassment and intimidation, intimidation of defense lawyers, and a variety of due process and fair trial violations under the emergency legislation.

The first set of general recommendations below suggest ways to establish a vetting process. The second set suggests sources that could contain relevant information on individual officers. These sources might be consulted and evaluated during the vetting process in order to determine whether or not an individual officer has committed human rights abuses and should be considered for exclusion from the force. Rarely will a single source of information be persuasive enough to place an officer under suspicion for abusive conduct rising to a level that indicates s/he should be excluded from the force. However, a number of sources taken together could lead a background or vetting unit to consider the officer a human rights risk.

It is imperative to note that any vetting process in the post-conflict period must be informed by the basic understanding that accountability mechanisms and safeguards against police abuse during the conflict were largely ineffective and failed to hold accountable many officers who committed abuses. Thus, officers allegedly exonerated of allegations of abuse under the "old" system should still be subject to the vetting process under Northern Ireland's new policing arrangements.

These recommendations apply only to the vetting of currently serving RUC officers who would either remain on the force during a reform process or who would be demobilized and re-apply to the police force in the case of a more fundamental restructuring. Thus, it is the record of the officer during time s/he spent in the RUC with which these recommendations for the vetting process are concerned.

Structure

• A Vetting Unit. The vetting process is, in essence, a thorough background check that mines several legitimate sources of information (see below) to determine whether or not a police officer has been involved in human rights abuses. It is not to be used to discover private information about an officer nor information that could be used to infringe on an officer's legitimate right to freedom of expression or association. There are many forms that a vetting unit can take but its primary characteristic must be that it is independent of political influence. In Northern Ireland, the word "independent" is routinely perceived with skepticism. Thus, great care must be taken to ensure that the composition and mandate of any vetting unit within Northern Ireland's new policing structure reflects its independence. Some police forces even out-source responsibility for background checks thus ensuring that there is no internal police influence in the process.
• Vetting as a Requirement for Becoming an Officer. The vetting process should be explained in detail to any person wishing to serve as an officer on the force. If a person pursues public service on the police force she automatically consents to the background check. If a person objects to the vetting process, he can seek opportunities to serve the public in a position other than as a sworn police officer. No exemptions should be permitted (e.g. based on rank, good reputation, past exemplary service, or number of years served). All persons wishing to serve as sworn officers or officials in the police force must be subject to the vetting process.




• Procedural Safeguards. The vetting process will be underpinned by procedural safeguards to protect the fundamental due process rights of every officer. No officer will be excluded from a peacetime policing service without the right to a hearing and the opportunity to appeal an adverse decision by the vetting unit. Throughout the course of the vetting process, an officer may submit information from any source to the vetting unit for consideration. If an officer is subject to an adverse decision by the vetting unit, he shall be permitted to present evidence at a duly convened hearing to rebut the evidence upon which the vetting unit's decision to exclude is made. The vetting unit will conduct itself in conformity with the internationally recognized principle of non-discrimination.
• Publication. The vetting process should be explained in detail to the public and methods for public participation should be developed and advertised (see section below titled "Community Consultation").

Process: Sources of Information

The following should be considered legitimate sources of information for consideration in the course of the vetting process. Human Rights Watch recognizes that it will take serious political will for some of these sources to be made available to a vetting unit. We urge the British government, the legal community, the judiciary, and the community-at-large to support the establishment of new and transparent mechanisms for accountability in Northern Ireland beginning with cooperation in the vetting of abusive officers from the police force:

• Classified Government Documents. In a December 1998 press report, Chris Patten, chairman of the Independent Commission on Policing for Northern Ireland, confirmed that he will seek to examine unpublished documents held by the British government under national security classification. With specific reference to the Stalker/Sampson and Stevens reports, which deal with disputed killings by the police and collusion between the security forces and loyalist paramilitaries, Chairman Patten was quoted as saying that the Policing Commission would not be "doing our job properly" if it did not try to evaluate these reports. Human Rights Watch welcomes the Policing Commission's commitment to access these reports as we recommended such action be taken in our written submission to the commission. We also believe that these reports (and other relevant government documents) should be made available to any vetting unit established to do background checks on officers under Northern Ireland's new policing arrangements. For example, it is widely believed that the Stalker/Sampson report recommended prosecutions for the police officers involved in six disputed killings in 1982. This information, if confirmed, would be relevant to the vetting process if any of those officers wish to remain in or reapply to a peacetime police service.
• Civil Actions. In a January 1997 report titled A Police Ombudsman for Northern Ireland? A Review of the Police Complaints System in Northern Ireland, Dr. Maurice Hayes noted that "around £500K is paid out annually on civil claims including cases of assault, wrongful arrest, false arrest, over holding." The judgments from civil actions against the RUC should be evaluated by a vetting unit in cases where damages are awarded to victims of police abuse. Information on officers who are found by a court to have engaged in abusive conduct is certainly relevant to the vetting process.⁽²⁾ Moreover, the unit conducting the vetting of police officers should have access to police files containing information on out-of-court settlements where the RUC assumes no liability for abusive practices but agrees to pay a victim damages. The vetting unit would honor the confidentiality of the settlement (that is, no information regarding the settlement would be made available to the public) and any information related to police abuse by individual officers would be entered into their vetting portfolios. It must be noted that under the current system in Northern Ireland, the standard of proof in a civil action is the "balance of probabilities" while the standard of proof necessary to give rise to police disciplinary action is "beyond a reasonable doubt." Thus, officers who are found liable for abuse in cases where the RUC has been ordered to pay damage awards are not necessarily ever subject to police disciplinary action. Human Rights Watch has called for a change in the standard for police disciplinary action from "beyond a reasonable doubt" to the "balance of probabilities." Despite the debate over standards of proof, civil actions and out-of-court settlements should be considered legitimate sources of information for consideration in the vetting process.
• Evidence of Illegally Obtained Confessions. In some criminal cases under Northern Ireland's emergency legislation, confession evidence has been rejected by the court as having been obtained in an illegal manner. Compelling a confession is a violation of fair trial standards and usually involves psychological or physical coercion amounting to torture or cruel, inhuman or degrading treatment. Police officers who take confession evidence often testify in court as to the circumstances surrounding a confession. Court records and trial transcripts can be used as legitimate sources of information to determine the involvement of police officers in coercing confession evidence. Moreover, using evidence of coerced confessions in the vetting process is a way of focusing attention on human rights abuses that have occurred for decades in Northern Ireland's special holding centers signaling a new level of intolerance for such practices. There is a small (and thus readily identifiable) number of RUC detectives who have conducted interrogations in the holding centers. Allegations of the most egregious human rights violations have been leveled against many of these detectives (see, for example, the note above regarding the case of David Adams). In the event that these detectives choose to remain in a new policing service, their records should be thoroughly evaluated and evidence of physical or psychological abuse in the holding centers accorded appropriate weight in the vetting process.
• Inquest Depositions. From 1969 through 1994, approximately 345 people (10 percent of overall fatalities related to the conflict) were killed by on-duty members of the security forces (military and police) in Northern Ireland. In thirty-three cases, the shootings were committed by police officers. In five cases, seven police officers were prosecuted. No police officer has ever been convicted for a disputed killing. Moreover, approximately 900 killings were committed by loyalist paramilitary groups from 1969-1994. In many of these cases, credible allegations of collusion between the police and these paramilitary organizations have been leveled against the RUC. No police officer has ever been prosecuted or convicted for collusion.⁽³⁾ In Northern Ireland, the police have remained relatively immune from prosecution for direct or indirect involvement in disputed killings. Thus, families of the victims usually have but one method of recourse to determine the circumstances of a disputed killing involving their family member: the inquest. Despite the narrow remit of the inquest in Northern Ireland and considerable procedural deficits,⁽⁴⁾ inquest proceedings often involve either written statements by police officers or actual testimony by officers about their involvement in a disputed killing. Inquest depositions and other information from inquest proceedings should thus be considered legitimate sources of information when vetting police officers involved in disputed killings for service in a peacetime police force.
• Official Complaints. The Independent Commission for Police Complaints (ICPC) receives numerous complaints against police officers every year. Under the current system, an ICPC commissioner supervises an investigation by the RUC into allegations of abuse by an RUC officer. The complaints system is a classic example of the police investigating the police. The burden of proof giving rise to disciplinary conduct is "beyond a reasonable doubt" and is a standard few complainants can meet despite credible complaints,⁽⁵⁾ some involving serious physical injury sustained while in police custody. Few complaints under this system are ever substantiated and the public has all but lost faith in its ability to hold police accountable for abusive practices. However, the ICPC files remain valuable sources of information, particularly with respect to officers who routinely engage in abusive conduct. These files should be thoroughly evaluated by any independent vetting unit and "complaints profiles" should be created for each officer being vetted.
• Investigative Files of the Director of Public Prosecutions (DPP). In some cases, ICPC investigative files and other investigative reports have been turned over to the DPP for a determination about whether or not to level criminal charges against an officer alleged to have engaged in abusive conduct. In numerous cases, the DPP has decided not to bring charges against these officers. In some cases, the DPP has decided not to bring criminal charges based on a "national interest" exemption. This indicates that abusive conduct most likely occurred but political considerations were prioritized over accountability for the offending officer. Any vetting body conducting extensive background checks on officers desiring to serve in a peacetime policing service should have access to all DPP files that contain the records of investigations into allegations of abuse against RUC officers, particularly those files where the DPP exempted an officer from prosecution based on the national interest.

• Routine Police Files. As a matter of course, any vetting body should have access to an RUC officer's complete police file. These files will undoubtedly contain information about an officer's conduct and any internal discussions or reviews in which the officer's character or conduct has been at issue.
• Community Consultation. As noted above, many people in Northern Ireland have lost confidence in the ICPC and some have refused to cooperate with an ICPC investigation because the chances of substantiating a complaint are negligible. Likewise, the deficits in the inquest procedure and the lack of even a single prosecution for a police officer involved (directly or indirectly) in a disputed killing have given rise to a near complete lack of confidence in the currently existing accountability mechanisms for officers who have allegedly engaged in abusive practices and committed human rights violations. However, many people in Northern Ireland support the Good Friday Agreement and the work of the Independent Commission on Policing for Northern Ireland. They want to see the creation of a truly professional and impartial policing service--free of officers who have committed human rights abuses. The public must be involved in the establishment of Northern Ireland's peacetime policing service not only because they will feel some "ownership" of new arrangements and structures but because they also hold valuable information about abusive officers. Numerous community groups and individuals have monitored police abuse in Northern Ireland, and many have kept records on individual officers and the circumstances surrounding events where the police have committed human rights violations. Any independent vetting body should seek information from the community regarding persons wishing to serve on the peacetime police force.

Arrangements for community input can be formulated in a variety of ways. For example, a list of persons being evaluated for service (continued or new) can be made public through advertisements in national and local newspapers or by lists posted in public areas such as postal facilities. The public (including solicitors, academic researchers, and journalists) would be invited to submit relevant information concerning the human rights records of persons named on the list. Another possible way to involve the public is for the vetting body actively to engage community members who know specific candidates. For example, a January 1999 report titled Performance Study: A Review of the New York City Police Department's Background Investigation Process for the Hiring of Police Officers by the New York City Commission to Combat Police Corruption recommended that background investigators begin to rely more upon face-to-face or telephone conversations with people who can either vouch for an officer or who might have information that indicates a candidate is not appropriate for police service. The recommendation that background investigators engage members of the public who may have information about a possible police recruit can easily be tailored to the meet needs of a vetting body under Northern Ireland's new policing arrangements. For example, investigators in a vetting unit could actively seek interviews with community members in neighborhoods or precincts where officers have served in the past. The vetting procedure would thus mine information on accountability from the community which may have never entered an official stream of information due to the public's lack of confidence in official accountability mechanisms. It must be stressed that no single source of information should result in exclusion from the police force. The purpose of the vetting unit is to build a profile of an officer based on a variety of sources (many of which are evaluated in this briefing paper).

• Input from Nongovernmental Organizations. Many international and local NGOs have documented police abuse in Northern Ireland and have called for numerous changes in policing arrangements in conformity with international human rights norms. Information should be solicited from NGOs considered expert organizations with respect to policing in Northern Ireland. For example, a vetting unit vested with responsibility for background checks of RUC officers would benefit from the numerous well-documented research studies of police abuse in Northern Ireland's holding centers.

CONCLUSION

Vetting a peacetime police force for officers who have committed human rights abuses during Northern Ireland's decades long conflict serves a dual purpose: it holds officers accountable for past abusive practices by excluding them from the policing service and it instills confidence in the public that future policing arrangements will be underpinned by democratic policing principles, including a representative, accountable officer corps. Human Rights Watch urges the Policing Commission to make vetting a top priority as it proceeds with its work.

Footnotes

5. As noted above, Human Rights Watch has recommended that the burden of proof for police disciplinary actions be lowered to the "balance of probabilities."