REPORT OF THE INDEPENDENT REVIEWER JUSTICE AND SECURITY (NORTHERN IRELAND) ACT 2007 SEVENTH REPORT: 1 AUGUST 2013 – 31 JULY 2014 David Seymour CB [January 2015] REPORT OF THE INDEPENDENT REVIEWER JUSTICE AND SECURITY (NORTHERN IRELAND) ACT 2007 SEVENTH REPORT: 1 AUGUST 2013 – 31 JULY 2014 David Seymour CB [January 2015] Presented to Parliament pursuant to Section 40 of the Justice and Security (Northern Ireland) Act 2007 © Crown copyright 2014 You may re-use this information (excluding logos) free of charge in any format or medium, under the terms of the Open Government Licence v.2. To view this licence visit www.nationalarchives.gov.uk/doc/open-government-licence/version/2/ or email [email protected] Where third party material has been identified, permission from the respective copyright holder must be sought. This publication is available at www.gov.uk/government/publications Any enquiries regarding this publication should be sent to us at [email protected] Print ISBN 9781474111973 Web ISBN 9781474111980 Printed in the UK by the Williams Lea Group on behalf of the Controller of Her Majesty’s Stationery Office ID 4111401 01/15 Printed on paper containing 75% recycled fibre content minimum The Rt Hon Theresa Villiers MP Secretary of State for Northern Ireland Independent Reviewer of the Justice and Security (Northern Ireland) Act 2007 In your letter to me of 11 November 2013, you appointed me as Independent Reviewer for the 3-year period of 1 February 2014 to 31 January 2017 under section 40 of the Justice and Security (Northern Ireland) Act 2007. My Terms of Reference were set out in the letter as follows: “The functions of the Independent Reviewer of the Justice and Security (Northern Ireland) Act 2007 will be, to review the operation of sections 21 to 32 of the Act and those who use or are affected by those sections; to review the procedures adopted by the Military in Northern Ireland for receiving, investigating and responding to complaints; and to report annually to the Secretary of State. The Reviewer will act in accordance with any request by the Secretary of State to include specified matters over and above those outlined in Sections 21 to 32 of the Act”. My predecessor’s reports for 2008 to 2013 are available on the Parliamentary website: www.gov.uk/government/publications I now have pleasure in submitting to you my first report which is the seventh annual report, and covers the period from 1 August 2013 to 31 July 2014. My executive summary of the report at page 2, sets out my conclusions and recommendations DAVID SEYMOUR CB December 2014 CONTENTS CHAPTER Page 1 INTRODUCTION 1 2 EXECUTIVE SUMMARY 2 3 METHODOLOGY AND APPROACH 4 4 SECURITY AND PUBLIC DISORDER 7 5 SAFEGUARDS 9 6 LEGAL CHALLENGES 11 7 THE OPERATION OF THE POWERS IN PRACTICE 17 8 COMMUNITY MONITORING 25 9 THE AUTHORISATION PROCESS 29 10 ROAD CLOSURES AND LAND REQUISITION 35 11 PSNI RESPONSE TO RECOMMENDATIONS 37 12 THE ARMED FORCES 43 13 SUMMARY OF VIEWS EXPRESSED BY CONSULTEES 48 14 CONCLUSION 56 ANNEX A ACRONYMS AND GLOSSARY 58 ANNEX B ORGANISATIONS AND INDIVIDUALS CONSULTED OR 60 SUBMITTING EVIDENCE ANNEX C SUMMARY OF THE POWERS 62 ANNEX D SECURITY STATEMENTS BY THE SECRETARY OF 68 STATE ANNEX E STATISTICS 77 ANNEX F AUTHORISATION FORM 83 INTRODUCTION 1.1 On 11th November 2013 I was appointed by the Secretary of State for Northern Ireland to the post of Independent Reviewer of the Justice and Security (Northern Ireland) Act 2007 (referred to throughout the rest of this report as the JSA). My appointment is for a 3-year period and started on 1st February 2014. The functions of the Reviewer are to review the operation of sections 21 to 32 of the JSA and the procedures adopted by the military for receiving, investigating and responding to complaints. The provisions of sections 21 to 32 are summarised in Part 1 of Annex C to this Report. Broadly speaking, they confer powers on the police and the military which do not exist in the rest of the UK. They are powers to stop and question, stop and search, to enter premises, to search for munitions etc, to stop and search vehicles, to take possession of land and to close roads. They are designed to address the specific security situation which exists in Northern Ireland. In announcing the appointment the Secretary of State said that: “the role of the Independent Reviewer is vital in securing confidence in the use of the powers… as well as the procedures adopted by the military in Northern Ireland for investigating complaints”. I was specifically invited to review the powers not only from the perspective of those who use them but also from that of those who are affected by them. 1.2 David Anderson QC, the Independent Reviewer of Terrorism Legislation in the United Kingdom, has said that the value of the Reviewer lies in the fact that he is independent, has access to secret and sensitive national security information, is able to engage with a wide cross section of the community and produces a prompt report which informs the public and political debate. That is the purpose of this Review and I am grateful to all the organisations and individuals who engaged in this process. I am also very grateful to officials in the Northern Ireland Office (NIO) who facilitated these discussions and arranged my visits to Northern Ireland. 1.3 The reports of my predecessor, Robert Whalley CB, covering the years 2008 to 2013 can be found on the website www.gov.uk/government/publications. 1 2. EXECUTIVE SUMMARY 2.1 The methodology and approach adopted for the review including details of visits, briefings, attendance at parades and other events, attendance at the Police Service of Northern Ireland (PSNI) training and meetings are set out together with an explanation of the format of the review. This is my first review. It looks generally at the JSA powers and their use but also looks in particular at some specific issues (eg community monitoring and authorisations) which have been raised in the course of the year. The reporting year of 1st August to 31st July is not convenient and it would be better if the period was based on a calendar year (paragraphs 3.1 to 3.13). 2.2 The security situation is as described by the Secretary of State in her Statements to Parliament of 29th January 2014 and 14th October 2014 (at Annex D) and remains at SEVERE (paragraphs 4.1 to 4.5). The public order situation remains challenging and places great strain on PSNI resources but the parading season in 2014 passed off without major incident (paragraph 4.6). 2.3 There are a number of safeguards relating to the use of the JSA powers. There are statutory restrictions and other conditions set out in the Code of Practice (paragraphs 5.2 to 5.5); there is excellent training provided by the PSNI in the use of the powers (paragraphs 5.6 to 5.7) and there are appropriate arrangements in place for the electronic recording by the PSNI of the use of the powers (paragraph 5.8 to 5.9). Any person who wishes to make a complaint about the exercise of these powers by the PSNI can do so to the office of the Police Ombudsman for Northern Ireland (Police Ombudsman) (paragraph 5.10). 2.4 There were a number of significant legal challenges in the reporting period. In the case of Ramsey (8th May 2014) the applicant challenged the lawfulness of the “without suspicion” stop and search powers in the JSA on the basis that, notwithstanding the introduction of the Code of Practice, the powers as set out in the JSA did not satisfy the “quality of law” test required by the European Court of Human Rights (ECHR). That challenge was unsuccessful (paragraphs 6.2 to 6.6). In the case of McAreavey (9th May 2014) the challenge to the JSA was based on the failure of the Secretary of State to consult properly on one specific aspect of the Code namely the requirement to provide a record of the stop and search. This challenge was successful insofar as the judge ordered that the Secretary of State must re-consult on the issue of how such records should be made (paragraphs 6.7 to 6.12). In the case of DB (1st July 2014) there was a challenge by a resident of Short Strand in Belfast to the alleged failure of the PSNI to take action to stop illegal parades by loyalist protesters during the Flags protest in 2013. The Court of Appeal held that the PSNI handling of the protests was well within their discretionary policing judgment (paragraphs 6.13 to 6.18). 2.5 An analysis of the operation of the powers in practice shows that the number of occasions on which JSA powers have been exercised has fallen considerably since the last reporting period (paragraphs 7.3 to 7.6). The powers are used in a way which is intelligence led (paragraphs 7.7 to 7.8). 2 There is no evidence to suggest that the powers are used in a disproportionate or discriminatory manner (paragraphs 7.9 to 7.14). The arrest rate for the exercise of the stop and search power is low but there are good reasons for this (paragraphs 7.15 to 7.19). The powers have on occasion not been exercised in the best possible way. There are ways in which the use of the powers might be improved the most promising of which are greater transparency and the use of body worn cameras (paragraphs 7.20 to 7.29).