Investigation - Terms of Reference (ToR)
Background

During his investigations into Brian Nelson, Sir John Stevens became aware of the activities of an alleged British Army agent, known as Stakeknife. 


This then led to early discussions about a Terms of Reference to expand the Stevens Investigation until March 2006 when the matter was passed to the PSNI Historical Enquiries Team.  Subsequent to this the Criminal Cases Review Commission referred a group of people to the Court of Appeal in respect of convictions relating to the kidnapping of a Mr Alexander Lynch.

Following the quashing of these convictions relating to the Alexander Lynch abduction by the Court of Appeal in January 2009, the then Director of Public Prosecution, Sir Alasdair Fraser QC, issued a direction pursuant to Section 35(5) of the Justice (Northern Ireland) Act 2002 requesting information from the Chief Constable in relation to potential criminal conduct of police and military personnel in relation to the Alexander Lynch case. 

A second referral pursuant to Section 35(5) was made by the current Director of Public Prosecutions on 29 January 2013, following the quashing of the convictions of Messrs. Ryan and Martin in relation to the murder of Joseph Fenton in 1989.

In June 2015 the Office of the Police Ombudsman contacted the Public Prosecution Service and indicated that they had completed a review of Stakeknife papers referred to them by the Historical Enquiries Team in 2012.  The Director of the Public Prosecution Service then issued a third Section 35(5) referral on 11 August 2015 seeking information on the affairs of an alleged agent known as Stakeknife.


A fourth Section 35(5) referral was issued in October 2015 regarding the possible commission of criminal offences in respect of allegations of perjury connected to the alleged agent.


Following a Historical Enquiries Team review of the 1993 murder of Mr Joseph Mulhern, the Police Service of Northern Ireland Serious Crime Branch reopened the investigation into his death in 2011.  This investigation is still progressing and an interim report was forwarded to the Public Prosecution Service in January 2016.
All these matters now form the basis of Op Kenova and fall within the Terms of Reference.
Legislative basis
The functions of the Police Service are set out in Section 32 of the Police (Northern Ireland) Act 2000, which states:
(1)     It shall be the general duty of police officers -
(a)  to protect life and property;
(b)  to preserve order;
(c)  to prevent the commission of offences; and
(d)  where an offence has been committed, to take measures to bring the offender to justice.


(2)     Police officers shall, so far as practicable, carry out their functions in co-operation with, and with the aim of securing the support of, the local community.

This investigation will comply with the requirements of the European Convention on Human Rights, as incorporated into domestic law by the Human Rights Act 1998.

The Director of Public Prosecutions
Insofar as this matter is concerned, the interaction between the Chief Constable and the Director of Public Prosecutions is set out in Section 35(5) of the Justice (Northern Ireland) Act 2002, which states:
“The Chief Constable of the Police Service of Northern Ireland must, at the request of the Director, ascertain and give to the Director:
information about any matter appearing to the Director to need investigation on the grounds that it may involve an offence committed against the law of Northern Ireland; and
information appearing to the Director to be necessary for the exercise of his functions.”
The Chief Constable of the Police Service of Northern Ireland will ensure that mechanisms are in place to update the Director of Public Prosecutions as to the progress of the investigation.

Externally-led Investigation

The Chief Constable of the Police Service of Northern Ireland has asked for the assistance of Chief Constable Jon Boutcher of Bedfordshire Police, to lead an external investigation team to carry out a full investigation in response to the Section 35(5) referrals, and the Mulhern investigation.


Chief Constable Boutcher will lead the investigation and appoint a Senior Investigating Officer and the investigation team.  Chief Constable Boutcher will have the full delegated authority of the Chief Constable of the Police Service of Northern Ireland to direct the investigation. 


The investigation team will carry out their investigation by virtue of Section 98(1) of the Police Act 1996 and thus, will have all the necessary powers and privileges of police officers of the Police Service of Northern Ireland, to ensure an effective investigation and ensure that the request from the Director of Public Prosecutions is fulfilled.  The team will be based in Great Britain and will carry out enquiries in Northern Ireland as necessary.  This external investigation team will be gathered from across UK law enforcement services.  It will not include personnel who are serving in or have previously served in the Royal Ulster Constabulary, Police Service of Northern Ireland, Ministry of Defence or Security Services.  


Mechanisms will be put in place to report any allegations of criminal or misconduct offences by the police officers or police staff within the Op Kenova investigation team, to the relevant investigative body.

Initial Investigative Remit

The investigative remit will be to establish:
Whether there is evidence of the commission of criminal offences by the alleged agent known as Stakeknife, including but not limited to, murders, attempted murders or unlawful imprisonments.


Whether there is evidence of criminal offences having been committed by members of the British Army, the Security Services or other Government agencies, in respect of the cases connected to the alleged agent known as Stakeknife. Regard in this context will be given to the Article 2 (ECHR) rights of victims and the associated responsibilities of the British Army, the Security Services, or other Government agencies.


Whether there is evidence of criminal offences having been committed by any other individual, in respect of the cases connected to the alleged agent.


Whether there is evidence of the commission of criminal offences by any persons in respect of allegations of perjury connected to the alleged agent.


If the Op Kenova investigation team identifies matters which indicate that former or current police officers may have committed criminal or misconduct offences, they will be formally and expeditiously referred to the Deputy Chief Constable of the Police Service of Northern Ireland who will refer the matter to the Office of the Police Ombudsman via the statutory requirements of the Police (Northern Ireland) Act 1998.


Any matters falling outside these parameters will be brought to the attention of the Chief Constable of the Police Service of Northern Ireland by Chief Constable Boutcher for consideration.The Chief Constable of the Police Service of Northern Ireland will, if necessary, consult with the Director of Public Prosecutions or the Police Ombudsman as to the appropriate basis on which to address these additional matters.

Communication

It will be the role of Chief Constable Boutcher to develop a Communications and Media Strategy for the investigation.  The Police Service of Northern Ireland remains available to provide assistance with this and with community impact assessments.  Family Liaison policy will be the exclusive responsibility of the Op Kenova investigation team.  


Chief Constable Boutcher will seek to establish an International Victims Focus Panel to guide the Op Kenova investigation team regarding the support and information to be provided to the families of victims.


A website will be established to provide general information regarding the investigation that is capable of being placed in the public domain.  The website will post the Terms of Reference for the investigation.  When the investigation team is established the website will also explain how to contact the investigation team for those with information regarding matters that fall within the Terms of Reference.


Legal Advice

Any legal advice required by the investigation team will be commissioned independently by the Op Kenova investigation team under the direction of Chief Constable Boutcher.

Police Ombudsman for Northern Ireland


The Police Ombudsman for Northern Ireland is the body with responsibility for investigation into complaints against former or serving Police Officers of the Police Service of Northern Ireland or, formerly, the Royal Ulster Constabulary.  They have commenced investigations into a number of complaints, relating to murders committed by members of the PIRA Internal Security Team.  The Police Ombudsman investigation is ongoing.


The Op Kenova investigation team will have access to the information held by the Office of the Police Ombudsman that relates to the Op Kenova criminal investigation through a Memorandum of Understanding between Chief Constable Boutcher and the Police Ombudsman.  There will be regular liaison between the Op Kenova investigation team and the Police Ombudsman.  The aforementioned Memorandum of Understanding will also provide the framework for the working relationship between the two parties.

Role of the Police Service of Northern Ireland

The Chief Constable of the Police Service of Northern Ireland will be regularly updated as to the progress of the investigation but will not seek to direct or control, or in any way interfere with the investigation.


The Chief Constable of the Police Service of Northern Ireland remains accountable to the Northern Ireland Policing Board for the conduct of Op Kenova.  If required, Chief Constable Boutcher will accompany senior members of the Police Service of Northern Ireland to brief the Northern Ireland Policing Board.


Chief Constable Boutcher will be responsible for the delivery of the final reports through the Chief Constable for the Police Service of Northern Ireland to the Director of Public Prosecutions.  These can include a file with prosecutorial recommendations for the consideration of the Director.


The Police Service of Northern Ireland will provide access to all information requested by the Op Kenova investigation team.  A Memorandum of Understanding will be provided to underpin this agreement between Chief Constable Boutcher and the Chief Constable of the Police Service of Northern Ireland.


The Police Service of Northern Ireland will be responsible for financial support to all elements of the investigation.  The Chief Constable of the Police Service of Northern Ireland reserves the right to keep all costs under review and to agree reasonable financial parameters for the discharge of the investigation.  


The Police Service of Northern Ireland will agree a Memorandum of Understanding with Bedfordshire Police regarding the employment model for seconded police officers and staff for Op Kenova. This will include setting out the payment and monitoring of all invoices and any other logistical requirements.

The Assistant Chief Constable (Legacy and Justice Department) has been appointed as the Police Service of Northern Ireland Single Point of Contact (SPOC) for the Op Kenova investigation team, and will provide all assistance as necessary to ensure that Chief Constable Boutcher receives the logistical and organisational support necessary to discharge his responsibilities.  The Police Service of Northern Ireland will supply the Op Kenova investigation team with any additional operational support required for the investigation as requested by Chief Constable Boutcher.

This Terms of Reference will be subject to review as required by the Chief Constable of the Police Service of Northern Ireland and Chief Constable Boutcher.

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