David Gilmour (DG): What are the objectives, scope and indeed limitation of the Stakeknife investigation?
Chief Constable George Hamilton (GH): We have over 1900 legacy cases that still need reviewed and dealt with, so the obvious question is why is this series of investigations different.
They’re different because the Director of Public Prosecutions, under Section 35 of the Justice Act, can basically compel me to investigate - that’s not the language used in the legislation, it’s ascertain and provide, I don’t know why it doesn’t just say that but it means the same thing.
There were a number of cases that had come to his attention. We had for example, coming out of the Stevens’ enquiry, which was an investigation into collusion in the 2000s, a number of cases that ended up being referred to the criminal cases review commission and convictions being quashed. Alexander Lynch was one of those cases, which was a case connected to this IRA Internal Security team. Then, there were other cases as well.
You had a total of three cases connected to this Internal Security team. The allegations are that there was a person, who has been referred to as Codename Stakeknife who was part of that team and a senior member of it who was also working for the State as an agent or covert human intelligence source. Clearly the Director on the basis of that crossover - the alleged dual role that we’ve all read about in the media - felt there was need for further investigation. So, there’s been a whole history and the terms of reference really set that out, what the background and history is.
As a result of all of that I am compelled to do the investigation and I’ve decided to do it with an external organisation.
The remit is: First of all whether there is evidence of the commission of any offences by the alleged agent known as Stakeknife. That would include, not limited to, murders and attempted murders. So it’s a very serious offence. It could include kidnappings, torture and all that sort of stuff. That’s the first piece, about what criminality is around Stakeknife.
Secondly, whether there is evidence of offences being committed by members of the British Army, the Security Services or other government agencies in respect of the cases connected to this alleged agent.
Thirdly, whether there is evidence of criminal offences having been committed by any other individual in respect to these cases.
So obviously this Internal Security team was much wider than just Stakeknife, and the IRA rules at the time would have meant that the killing of a volunteer alleged to have been an agent would need to be authorised at a very senior level. So, there may well be other criminalities falling out of that conspiracy to murder and so on, incitement and things. That’s the third area.
Then, whether there is evidence of the commission of criminal offences by any person in respect to allegations of perjury connected with the alleged agent.
There have been a number of court cases where there have been miscarriages of justice, there have been judicial reviews, the alleged agent Stakeknife has actually taken the Secretary of State to court to have her confirm that he was not an agent. Which we can neither confirm nor deny. Once you start doing that you set a precedent and then people’s lives are at risk.
So, that’s the perjury element.
Clearly, all of this stuff is interconnected. For this external investigation team, if they find other matters that indicate that former police officers may have committed offences, that would be referred back to us to go to the Police Ombudsman - the police don’t investigate the police the Ombudsman does that.
There will be other things that the investigation team [will come across], because the crimes end up getting linked to other crimes and so on. We need to put some sort of parameter on it. We need to put some sort of rope around it, or it’ll end up going all over the place. If the external inquiry team find something that’s evidence, that is likely to lead to a criminal justice outcome [which is] outside the terms of reference, then they can bring it back to me and I can decide whether we take it and investigate it or whether we’ll ask them to do it. We’ll find out then what we’re going to do. We’ll not ignore it, but we have to put some parameters around [the whole investigation].
DG: In terms of a timescale, how long do you expect to allow for the investigation?
GH: Well, I need to allow the external team to scope it properly. The actual 35 referrals really relate to three specific cases of murder and kidnap, then there’s another case that the PSNI had gone quite a distance in investigating with the common denominator being this person known as Stakeknife. That’s the sort of starting point.
But if we’re going to investigate Stakeknife... I need to allow the investigative team to set sensible investigative parameters and do the scoping once they’ve looked at all the material. It’s very hard to say how big it will be. It could be up towards 50, at least being considered. I imagine that they would probably consider 50 but not necessarily end up investigating all 50, because they have to set some sort of parameter or it’ll go all over the place and never get finished actually.
So, in terms of timescale I really don’t know. It is a bit of an estimate but I would have thought we’d be looking at 3-5 years to get this job done but I wouldn’t really want to be held to that either.
DG: How much would you expect that to cost per year - obviously given that there’s no real timeframe?
GH: It’s a good question. It depends how quickly the team gets built up. I would imagine that around 70 to 80 people will end up working on this, when it gets to full tilt. It’ll take a while to build because there’ll be lots of records management and setting up of IT systems - you don’t need people sitting and tapping the desk waiting for that to be done. So, a small team to do all that enabling stuff will happen in this financial year. Then it will grow to upwards of 70 in future years.
There’s also accommodation costs, IT costs, travel costs and all of that so, again, this needs to be finalised and scoped out, but probably talking somewhere between £5 million and £7 million per year. Again, estimate, for 5 years or so. That’s more intuition at the minute.
DG: And is there any idea of where that funding will come from?
GH: No, [laughs] and that’s the problem. I mean this is a core responsibility of the police but this is additional work that we weren’t anticipating and we are obliged to do it.
There’s an argument that says that this is the responsibility of the London government, Westminster’s Northern Ireland Office effectively, because it dealt with national security issues at the time. All the matters happened before the devolution of policing and justice and so they should take responsibility for them.
There’s the counter-argument that says, policing and justice is devolved, this is an investigation and devolved matter. For the Department of Justice and the NIO, it’s probably going to end up being a shared responsibility for the financing of it but there’s no additional money been made available.
I have asked for even an underwriting, I haven’t even asked for a cheque up front. I asked for an underwriting, that if we get stuck and there is an additional spend can [they] undertake to pay this and they said no - which worries me because the state does have an obligation to ensure that these investigations are properly resourced.
That said, we still have a very significant budget but it will be opportunity costs out of other things. So, other areas of policing will inevitably have to suffer because there’d be, say, £5 million a year not used in current day policing that will have to be focused into this.
Now, we are about to enter into a new spending review period, so very soon the Executive will be asking all of the arms length bodies, like the Police Service and everybody else, to start building budgets for the next three years. We will build this in, and make it part of the bid. Whether we get any additional money for it remains to be seen. I wouldn’t be optimistic.
DG: So you are in a position where you are compelled to do these investigations but the provision of additional costing is a decision made above your head?
GH: Yeah, I mean I can’t say that I can’t afford to do it, all I can say is that there’s money to do it but it will be at the cost of not doing something else. If people want neighbourhood policing teams and community policing and all of that then they need to understand that the decisions not to fund this are going to have consequences for day-to-day policing today. So, we’ll see how all this plays out but there’s no additional money that’s been made available so far and we will build it into our bidding process for the future.
At some levels it’s my job to outline the implications of this, it’s actually a political decision about whether or not they’re going to fund it. There’s no point in me wasting energy over that, all I can simply say is that these are the consequences, these are the financial implications and police resourcing is a matter for the politicians.
DG: In terms of bringing in an external team, how does that investigative infrastructure look and how will it be implemented?
GH: Well there is a very technical aspect to it terms of the legal basis upon which they can come in. The terms of reference because that’s all explained in there.
Basically, I can delegate functions to another Chief Constable to perform on my behalf but I remain responsible and accountable. I can’t abdicate but I can seek assistance and that’s what we’re doing really.
Jon Boutcher is very experienced in the world of sensitive investigations, his police career is a very impressive one looking at high profile investigations. He would have been one of the senior investigating officers in the 7/7 bombings in London and has a very extensive history in that world, although he has never worked in Northern Ireland or been involved in any matters here. So he is the ideal fit. He is right up to speed with what is required in these complex investigations he’s done this type of thing, though this is very unique.
He’ll not be personally engaged every day but will basically oversee it and fulfill the role that I would have filled if we had been performing this with the PSNI. Underneath that there will be an Assistant Chief Constable who will be on this full-time, it will be their full-time job for the next number of years and under that they’ll build a whole team. It’ll include investigative teams, people that will run the HOME system for managing the documents. In many ways, these investigators are trained in linked-series crimes, and whilst this is very complex and we’ll be reaching into a lot of very difficult places, in some ways the investigative doctrine that’s applied is stuff that UK policing is good at.
It’s not as if they’ll be trying to find a new methodology just because of the complexities of this case, this is case is difficult and complex and larger than most but the methodologies are tried and tested. I have full confidence in the people that will be doing it.
I just spent all day yesterday [Thursday] with them finalising terms of reference and talking about how the reporting lines are going to happen so that I’m not controlling it but the delegated Chief Jon Boutcher is given full directional control over this inquiry - although he does need to talk to me because I’m accountable to the policing board. I would imagine that a lot of the visits to the policing board on this issue will be myself and Jon Boutcher as a double act.
DG: Given that it is an external team, will they be located in Northern Ireland?
GH: No. We made the decision, both on the basis of cost and independence that the team would be housed in secure accommodation in London. They will reach across into Northern Ireland when they need to.
They will have various points of contact to allow the machine to operate. The points of contact won’t be investigators but will be people within PSNI who will be able to make things happen for them - give them access to material and all that. But those people will not exercise any judgement over what material they will give. They will simply be the conduit for navigating their way through this big organisation.
So, based in London. Secure accommodation has already been secured, the IT has been ordered, probably by the end of the summer all of the logistics will be in place for us to actually start. Then there’ll be the matter of getting all the various documents and materials secured from the various government departments and getting it loaded onto the IT system so that it can be accessible and searchable and manageable.
The system used is called HOMES, the Home Office Large and Major Enquiries System. It’s a system for managing masses of documentation, indexing it and identifying the links. It was actually created following the Yorkshire Ripper cases to allow links to be made between multiple cases. There’s a bespoke system that we use here and they’re going to use it in England on all of our material but you need to get everything input to it, so it’s going to take a wee while just to get the material into a manageable format before they can start doing investigative things. That needs done first.
Operationally, you mentioned you’d hoped to have a team of up to 70. If there are arrests to be made further down the road is it the investigation team that make those arrests or the PSNI that make those arrests?
The investigation team will make those arrests. They will have full power under the legislation contained in the terms of reference. For them to do this investigation they can act with the full powers of a police officer in Northern Ireland. However, things like search teams which would accompany them, there’ll still be people going out with the investigation team. So all the logistical and operational support will come from here, but there will be no directional control over the operation. The actual interviews will be taken by the English team but we’ll be here to help make it happen.
DG: What kind of access to intelligence material will the team be granted?
GH: In this organisation, it’ll be absolutely unfettered. I will personally make sure that that is the case. Even around relevancy of documents, it will be this external team that will decide relevancy. It will not be the intelligence branch or the PSNI that will decide relevancy. There’ll be no question about that.
There has been a parallel investigation ongoing by Police Scotland on our behalf into the Hayshed killings in the 1980s and there was an unsafe conviction on that. That investigation reached into the security service, MoD and several government departments and has actually worked really well in terms of government departments co-operating with Police Scotland on that enquiry - producing their material. Even material that’s been legally privileged that they could have made an argument for not releasing, there has been full co-operation. So, we’re hoping that a number of the same government departments, given it’ll be the same people, will co-operate on this investigation. I’d be optimistic that the team won’t have too much difficulty, in terms of access to material, totally across government. Certainly in this organisation, they’ll just need to ask. We’ll appoint somebody who will be the enabler for that.
DG: So you have no major concern about threats to national security and the like with this investigation?
GH: There is a concern but these are police officers who are subject to all of the vetting required to handle sensitive material. The accommodation where the information will be stored is all to accredited secure standards, allowing it to retain secret and top secret material. The police officers who are doing this understand the sensitives and responsibilities they have when handling secret material. On that basis, I have every confidence that they need to have the material but with that comes the responsibility in how they handle it.
Likewise, whilst I’m going to make sure that the material is disclosed to them, it may not be possible for them to disclose of all the detail of that material to other parties or the families, that’s a different issue. But to allow them to do their investigation they will not be fettered in any way.
DG: Is it possible to carry the investigation through to conclusion if that information is not made public in the end, for the purposes of prosecution for example?
GH: Our job is to secure the evidence and present it to the prosecutor, and that’s what we’ll do. There’s always a challenge about getting intelligence translated into evidence, in other words something that’s acceptable in court, because to do that you basically need statements rather than intelligence documents with no names on them. So the value of [intelligence] evidentially is almost nil.
Then there are issues around protecting sources of that information. Ironically this investigation shows that if people are believed to have been informants, history shows, that if that is compromised they could lose their lives - and probably will. So the stakes are pretty high.
DG: What do you think implications are and the expectations are of the State?
GH: I think they are pretty clearly laid out in the European Convention on Human Rights, Article 2, which talks about an independent investigation, an investigation that should be thorough, expeditious… although it’s not that expeditious given how old it is… but now that we have started it, we’re going to put resource to it to deal with it in a reasonable period of time. The State’s obligations are pretty clearly laid out in the ECHR.
Now earlier, in response to the question on funding, that is the UK government’s responsibility to make this happen. I can only ask and outline the implications of not funding it, the decision and Article 2 obligation to conduct a comprehensive and independent investigation is the UK government’s responsibility. They might use me to fulfil that responsibility but it’s theirs under the convention.
DG: How do you feel that the PSNI might continue to build trust in communities if the State then chooses to withhold information from the public?
GH: I think when it’s slightly different place with these criminal investigations. There will not be an issue of disclosure of information from the PSNI to investigators. The problem comes, and this would be the same if we were doing the investigation ourselves, is with what you do with that information. Onward disclosure to families and into the public domain is the stuff that sometimes just can’t happen.
The disclosure to support the investigative team is pretty straight forward. The problem comes further down the road and this where some families do lose confidence, when they can’t be told some detail that they want to know.
DG: There’s the assumption that this may not be for National Security interests but to protect someone…
GH: Well, that’s a slightly different issue. We should be protecting information where if we don’t protect it we’ll be putting someone’s life in jeopardy, or to protect sensitive methodology. We should never be redacting or not disclosing information to save ourselves embarrassment. Embarrassment is not a national security issue. We wouldn’t be doing that.
There are genuine issues around methodology and risk to people’s lives that we have to take seriously. We’ll take them seriously but we’ll not use them as an excuse or hide behind them. That’s the thing. Convincing families, NGOs and communities of that is sometimes difficult.
DG: Of course, it isn’t just the State being called to account, the investigation will look at the IRA. What do you think it would ask of them and what we know of them?
GH: The terms of reference make it clear that there are four broad areas for investigation. One is Stakeknife himself, others are potential criminality of people who were involved with him in the intelligence world like handlers, the third is anybody else who would have been engaged.
I said earlier, these people were part of an IRA internal security team so other people are going to have questions to answer. There may well be, when we investigate it, so-called State actors that may need to be interviewed under caution and all of that. I imagine there will be other people as well though who will need to be interviewed beyond Stakeknife and State actors into other members in the IRA and people who were in the Provisional IRA at the time. I don’t know that, we’ll have to wait and see. You would expect, given the rules of the IRA at the time, that there would be other people to talk to.
DG: But you’ll be open to that and criminal prosecutions…
GH: The external team will go where the evidence takes them. If we get to the point where we need to be arresting people and interviewing them, we’ll do that. Regardless of who they are or what positions they hold we’ll go where the evidence takes us, and we’ll call it as it is for investigative purposes. It’ll be an interesting few years ahead on that front I guess.
DG: Obviously Stakeknife is part of a bigger legacy question. Would you have preferred to have waited on the proposed structure on the past to be in place, that is the Historical Investigations Unit (HIU) and the Independent Commission on Information Retrieval (ICIR), before launching the investigation?
GH: Yeah. I don’t mean this disrespectfully to my colleagues who have agreed to do this, but it is a bit of a sticking plaster. The neat way to have done this would be to have had an Historical Investigations Unit set up, and this piece of work referred to me by the Director of Public Prosecutions would have just been directed to the HIU.
But there is no political consensus on that yet, although all the mood music indicates that it’s going in the right direction. We would be really supportive of that. I guess this being structured in such away that if over the lifetime of the investigation those structures are put in place (although it would be a political decision about what was included and what wasn’t included), that instead of Chief Constable Boutcher plugging in to me he could actually work to the Director of HIU.
We have built everything so that it’s self contained and if the person who is legally responsible changes from me to the Director of the HIU it just means Chief Constable Boutcher has his update meetings with a different senior person.
Ideally, all of that infrastructure would have been in place to deal with the past and this is the next best thing we can do.
DG: How would you address criticism from sceptics that this is a ‘piecemeal’ approach to legacy?
GH: I would agree with them, it’s a mess. There has been, since the Good Friday Agreement, politicians putting this in the too-hard-to-do box, or didn’t think it through that this would be the issue it has become or something there wouldn’t be a consensus on… I don’t know what the reason is for the untidiness but I would say rather than cynics, I’d say the informed observer would say it was piecemeal.
Now I’m not saying our investigation will be a mess or chaotic, we will do that to professional standards and we’re doing the best with what we’ve got but the PSNI is not structured or designed to deal with the past and we are constantly being bombarded with it. I personally have, this week, spent half of my time on legacy issues and that’s not unusual. We have an Assistant Chief Constable now and probably about 80% of his job is dealing with legacy issues, there’s a whole department there, lawyers, investigators… We’ve got Police Scotland running one legacy investigation and we’re going to have Chief Constable Boutcher running this massive linked investigation.
It is far from ideal and the police are very often the service of last resort, but everything defaults to us because of shortcomings in other places. And in this case it’s shortcoming in the political space where there has been a lack of consensus on how to deal with the past.
DG: How do you find having to shoulder investigations like this impacts on how the PSNI have to deal with active threats within society?
GH: Well it’s becoming increasingly difficult because there are a number of things happening at once. The profile and demand, the pressure on legacy cases is increasing. The overall resourcing for policing is decreasing. The size of demand and public expectation for policing in the here and now is increasing. And the demand is changing.
Public expectation would say lots of high visibility neighbourhood police officers, out there being visible dealing with low level crime, anti-social behaviour and reassuring the public. That’s public expectation.
However the real demand, based on threat risk and harm, is moving into a less visible space. Cyber crime, sex crime increasing, child sexual exploitation increasing, human trafficking, organised crime - a lot of which is moving to the online space. When you start to invest in those things with the decreasing number of officers and a reducing budget, it means that people are going into those high risk but less visible areas of policing at the cost of what looks like the front end.
I would say now that tackling harm is absolute front-end policing - if it’s cybercrime and child sexual exploitation, domestic abuse… All of that is really important front end policing but it’s not visible. That’s the real challenge.
You’ve legacy demand increasing and no money coming for it. Even the normal budget, the main block grant, is decreasing, increasing expectation, all of which just becomes really challenging.