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Good morning, I am going to address you this morning on the key issue of legacy. Legacy in my view is connected to a multitude of issues today in NI and across the island of Ireland, including societal wellbeing, economic strength and opportunity, UK and Irish governmental relationships and the trust and confidence of the public towards both governments and the devolved assembly in NI.

Written before I became Chief Constable of the PSNI I authored the Kenova report which highlights the continuing failure of governments, public authorities, political parties and those who fought in the Troubles to acknowledge properly the hurt inflicted on the families of those who were murdered, or to provide them with a meaningful examination of the circumstances of their deaths. Even the most uncontroversial information about what happened has been withheld from families. Conscious of the recent setting up of the ICRIR, in many cases this remains the position today. This lack of disclosure about offences as serious as murder would simply not be tolerated elsewhere in the United Kingdom.

Several high-profile investigations and inquiries have been commissioned into specific Northern Ireland legacy cases in the past. Each came up against non-disclosure and secrecy and each produced reports which largely remain classified ‘Secret’ or ‘Top Secret’. Successive Secretaries of State (SoS) have listened to at best weak and certainly outdated arguments about NCND that have resulted in a complete lack of trust towards government and the security forces. If I had listened to those same arguments when consulting with lawyers from the security forces regarding my report it would not have contained many of the key findings commented upon when it was published. The secrecy surrounding legacy reports has fed conspiracy theories and hampered reconciliation. Legacy families will not trust in public institutions unless and until the authorities have given them the truth, acknowledged their loss and provided them with an opportunity to tell their stories.

Information about Northern Ireland legacy cases has too often been withheld and suppressed because of concerns about where it might lead. On becoming chief constable I met lawyers and counsel for the PSNI who sought to persuade me that once an inquest had opened the police could not conduct investigations into that death and that information that an agent had committed a murder could not be investigated as to do so would be breach national security provisions. Both positions are manifestly wrong but for me the fact that they were advanced was even more worrying.

A perceived need to avoid undesirable outcomes should never be allowed to pre-empt disclosure and due process. First, because this is wrong in principle and, second, because our public institutions can and should be trusted to act in the public interest without causing harm to individuals or national security.

Where information suggesting the commission of a serious criminal offence is discovered or uncovered, it should be investigated and subjected to a criminal justice process regardless of the context. Mechanisms exist to ensure sensitive information is protected and competing public interests balanced. Crucially, it is for the independent and impartial judiciary to operate these mechanisms in public and not for the security agencies and government to do so in private.

It would be inappropriate in this forum to speak in detail of the ongoing legal challenges in the Brown or Thompson inquest cases however these were the subject of a recent and in my view welcome ruling in the Northern Ireland court of appeal chaired by Lady Chief Justice Keegan, I recommend the judgement to you. A decsion awaits on whether the SoS will be granted leave to appeal the judgement in the Supreme court.

Much of the truth of what happened in Northern Ireland during the Troubles is subject to obligations of confidentiality and secrecy which will often exist for good reason and which should not lightly be set aside. For different reasons, all sides of the conflict are sensitive about public disclosure of past secrets and, in particular, the direct or indirect identification of agents. I respect and do not dismiss these sensitivities and I recognise that they can continue to apply even after the death of the person concerned. I was the head of undercover policing and covert policing I know these arguments extremely well.

All of this said, secret intelligence, the protection of sources and the preservation of law, order and national security are all means to a greater end, namely, maintaining a stable and democratic society which is subject to the rule of law and in which human rights are protected, respected and may be exercised freely. However these values would be eroded if the protection of state agents rendered them immune from prosecution or if agents were allowed to become instruments of unaccountable wrongdoing or to use their status to commit crimes with impunity.

Living in a democratic society we would be appalled if another country acted in such a way and would rightfully join international condemnation of any investigative failures.

It is understandable that many of these legacy cases were not adequately investigated during the conflict itself. The times were incredibly challenging and dangerous for all concerned. Terrorist groups intimidated victims, families and witnesses. The security forces were exposed to continual threats. The then Royal Ulster Constabulary (RUC) was the most dangerous police force in the world in which to serve, such was its death toll and casualty numbers.

The bravery, sacrifices and successes of the security forces must never be forgotten. Terrorists created an incredibly dangerous operating environment. I have huge admiration for those who served in the security services during an unimaginably dangerous time in our history.

It is the failures since the GFA of continued secrecy around legacy disclosure that is counterproductive and damaging to the confidence of communities in the authorities charged with their protection. I am especially conscious as chief constable of this as regards the trust in policing which continues to be negatively impacted by legacy.

We must heal the societal divisions caused by the continuing failure to address legacy and support legacy families. If we do not do this, the lessons of the conflict will be set aside and the resulting transgenerational trauma will be borne by future families. Those in authority who continue to obfuscate and who obstruct disclosure and access to information should consider carefully how history will judge them.

Literally every legacy family I have spoken to has been let down and had promises made to them that have been broken in some form or another. Most worryingly, many in authority responsible for helping them discover the truth have dismissed them or even deliberately frustrated their efforts to discover what happened.

In what appeared to be an attempt to disregard legacy I have heard repeatedly from officials that memories fade over time and families are often motivated by a political agenda. I have found these claims to be manifestly untrue – families remember precisely what happened when such life-changing events occurred. Victims remember the song that was playing and the conversation they were having when the darkness struck as the bomb went off, they recall exactly what happened when terrorists came to their door, they remember exactly what was said when being told their loved one had been killed. For some who investigated these crimes or committed these atrocities, memories might fade, but not for the families. They not only suffered the unimaginable loss of a loved one, they then experienced systemic obstruction when seeking to discover what happened. They deserve to be listened to, acknowledged and told the truth.

My Kenova work was the latest in a long line of investigations and inquiries into matters relating to the state’s response to the Northern Ireland Troubles. Many of the reports produced by these inquiries remain classified as ‘Secret’ or ‘Top Secret’. As a result, they have not been published and therefore have not been made available for public scrutiny, lessons have not been learned and there have been suspicions, justified or not, of a ‘cover up’.

Many victims and families I met have long-held beliefs, suspicions and fears about these patterns and the part they may have played in their particular cases and have been denied the truth for too long. The Kenova report effectively says to these individuals, “you are not mad, this was happening and it should not have been”. I hoped that hearing this will be meaningful to those concerned.

I made clear from the start that victims and families would be at the heart of Operation Kenova. Families often had no contact with the police after the murder of a loved one. In many cases, they were not even made aware that an inquest into the death was due or had been held.

Personal contact is essential to give families support, understanding and the information they deserve as well as assisting us in our investigation. I made contact with each family, listened to their concerns, answered any questions that I was able to, all for me to better understand their experiences.

When designing the Kenova I sought to ensure that it was fully compliant with all articles of the European Convention of Human Rights (ECHR) and actively sought independent scrutiny and oversight.

Of particular importance to this investigation is article 2 ECHR which guarantees the right to life. Article 2 requires that an enhanced official investigation be conducted into any death occurring in circumstances in which it appears that the state may have breached one of its substantive obligations under article 2 by taking or failing to protect life. Such investigations must be effective, independent, prompt, open to public scrutiny and involve the next of kin.

In early 2017, Alyson Kilpatrick BL, then human rights advisor to Northern Ireland Policing Board (NIPB), was tasked by the Board to review Kenova’s compliance with the Human Rights Act 1998 and ECHR.

In her 2017 NIPB Annual Report Ms Kilpatrick said that from the outset Kenova had sought full compliance with article 2 and that we had clear mechanisms in place to ensure independence and avoid any real or perceived conflicts of interest. In particular, she made favourable comments about our website, independent legal advisers and independent governance groups.

I subsequently appointed Ms Kilpatrick to conduct a more comprehensive independent review of Kenova’s ECHR compliance.

I also commissioned the National Police Chiefs’ Council (NPCC) Homicide Working Group to review our performance from an intelligence and investigations perspective and asked National Counter Terrorism Policing HQ to ensure that sensitive and complex national security elements of Kenova were properly scrutinised as part of this review.

Ms Kilpatrick published her first interim report in February 2020. She commented that the “Operation Kenova investigation appears to be an exemplar of one which is commanded and controlled with every aspect of article 2 firmly in mind”. In January 2021 she produced her second interim report where she addressed Kenova’s effectiveness and independence in the context of resources, oversight and decisions by PPSNI. She stated that she remained entirely satisfied of Kenova’s article 2 compliance. In August 2021 Ms Kilpatrick produced her final report. In her covering letter she said, “Kenova really is an exemplar of what such an investigation can and should be. It is the best I have seen in all of my experience”.

The NPCC Homicide Working Group reported in January 2021. Its report praised the structures and operating model of Kenova and the priority given to victims and families and described our overall approach as an innovative hybrid of homicide and counter terrorism investigative processes.

The independent Victim Focus Group (VFG) conducted its own independent review of our performance in relation to victim best practice and our approach to victims’ rights. It published its report in August 2021. This identified several interrelated themes that had enabled us to underpin Kenova’s legitimacy, build trust with families and thereby carry out effective investigations. These themes being a victim and human rights centred approach, independence, procedural fairness, transparency and public accountability together with a leadership style which embeds these principles into the investigation and appropriate resourcing.

I have encountered a number of challenges while leading Kenova. Some, such as difficulty in accessing information and attempts to undermine me and the investigation, were expected (and were predicted by those who led previous such inquiries), others such as the length of time for prosecution decisions to be made by PPSNI, I did not expect.

The challenges included:

 False allegations made through the security forces that I had released names of agents. I was able to easily refute these, but felt that this episode represented an attempt to undermine me and Kenova’s credibility.

 Accessing information held by MI5, largely historical materials originating from the RUC Special Branch and FRU.

 MI5s decision to classify as ‘Top Secret’ an accumulation of ‘Secret’ documents

 Solicitors representing former security force personnel who were to be interviewed under caution given greater and unorthodox access to MI5 materials

As part of my Kenova work I read the reports of previous inquiries into legacy matters. Where possible, I met with those who wrote these reports or who were otherwise involved in these inquiries. These previous legacy reports reflect a number of themes associated with Troubles related investigations:

 each report contains similar findings to mine;

 As already mentioned these reports are too often over-classified as ‘Secret’ or ‘Top Secret’ meaning that the lessons they were intended to draw were not learned or subjected to public scrutiny;

 there is an unedifying history of the various inquiries facing the same challenges in obtaining information; and

 their investigators had to confront constant efforts to undermine and frustrate them.

I recognise and understand the nervousness of many in the security forces who describe legacy as ‘history being re-written’. Through a fair and independent investigative process that recognises the context of the times, such concerns can be addressed. Attempts to undermine investigations and the culture of obstruction that have frustrated legacy inquiries only damage the reputation of the security forces.

These earlier legacy reports describe a catalogue of unacceptable practices around how the security forces used agents during the Troubles. They evidence a culture, both then and subsequently, of secrecy and resistance to fair and measured scrutiny, and of failing properly to disclose information. Most worryingly, these reports demonstrate a concerted and continued absence of effort by those responsible for leading the security forces and by successive governments to establish the truth.

In advance of my giving evidence to Northern Ireland Affairs Committee (NIAC) in September 2020, I telephoned a number of my predecessors in legacy to inform them that I was giving evidence and to ask if there was anything they might wish me to pass on to the Committee. This is what they said:

 David Cox, formerly Head of PSNI HET – “They (PSNI Intelligence) always gave me a limited version of the truth – they invariably did not and will not give up information”.

 Lord Stevens, referring to the security forces – “I was misled deliberately, I was criminally obstructed from doing my job by the RUC and military, whilst MI5 failed to disclose information”.

 Judge Pomerance, Senior Counsel to the Cory Inquiry – “We could not compel material being provided – others controlled what we received and when and how we received it and the conditions in which we received it. They (MI5) made the entire process uncomfortable. The state viewed itself as above the law”.

 Mary Laverty, Senior Counsel to Judge Smithwick – “They (the security forces) made it incredibly hard – when will they decide they can reveal information?”

Some Key Findings of the Kenova Report

Murders were committed by agents, including cases in which one agent murdered another, cases in which agents were acting contrary to their instructions or tasking and cases in which it is arguable that they were acting on behalf of the state.

Some murders were the subject of advance intelligence and so could have been prevented; there were cases in which such intelligence was not passed on or properly assessed; and cases in which this was done but the security forces nevertheless decided against preventive action because this might have exposed or compromised an agent.

Some of these cases were uniquely challenging for the security forces to deal with. They had to assess risks and consequences with limited information, guidance or training. They did so under exceptionally stressful conditions and extreme time pressure, and were sometimes presented with dilemmas which had no ‘right answer’, because protecting one individual might expose another. Mistakes and questionable decisions were inevitable and understandable.

In the report I highlight – The importance and limits of secrecy in the national security context: Ensuring the operational effectiveness of the security forces in the interests of national security calls for secrecy. However, there is also a public interest in ensuring that laws are not broken and that all public authorities, including security forces, operate lawfully and compatibly with human rights and this calls for external accountability and scrutiny. State agents do need to be protected through anonymity and secrecy, but that protection cannot confer de facto immunity or a right to act with impunity as that would be wholly incompatible with the rule of law and human rights. Agents do not have a free licence to break the law and should not be led to believe otherwise. Furthermore, the absolutist approach to anonymity risked, and may well have led to, others losing their lives and it undoubtedly prevented lessons being learned and improvements made.

In the report I also examine – Secrecy and accountability in practice and the ‘neither confirm nor deny’ (NCND) policy: NCND is described in a Cabinet Office Guidance Note as “a mechanism used to protect sensitive information” which “applies where secrecy is necessary in the public interest and where this mechanism avoids the risks of damage that a confirmation or denial would create”. Various legal judgments have recognised the importance of the NCND policy, but they also stress that it is not a legal rule or principle, does not bind the courts and should not be applied on a blanket basis. There have been several cases where there has been a departure from the NCND policy and a number of Kenova cases justify a similar departure. Despite this, NCND seems to have assumed a totemic status within government and the security forces and to have become an implacable dogma or mantra with the qualities of a stone wall. NCND should be subjected to a review, particularly as to its routine application to Troubles related cases in order to ensure it is not allowed to obscure wrongdoing by the security forces or serious criminality by agents.

The republican leadership have failed to acknowledge and apologise for PIRA’s murderous activities and the intimidation of families: Members of PIRA’s ISU were responsible for torture, inhumane and degrading treatment and murder, including of children, vulnerable adults, those with learning difficulties and those who were entirely innocent of the claims made against them. Allegations that individuals were working as agents were sometimes motivated by a desire to eliminate rivals and even the partners of those involved in extra-marital affairs. ‘Confessions’ to being agents, whether in audio recordings or in writing, were obtained through violence or deception and by making false promises to victims. None of these so-called confessions are reliable.

The security forces sometimes failed to protect those accused or suspected by PIRA of being agents and failed to bring those responsible for harming them to justice:

We have identified occasions when agents were under surveillance by the security forces and the surveillance team was withdrawn leaving the victim exposed to torture and murder. Failings extend to PIRA ISU members not being arrested and prosecuted when the evidence was readily available. This permitted murderers, and those involved in torture and abduction, to escape the rule of law and this happened repeatedly.

Where we established that agents were involved in murder there is no evidence to suggest that the authorities considered holding these agents liable for their criminal acts.

There is a view among some that to accept that the security forces got things wrong somehow hands the moral high ground to the terrorists. It does not. To expose failings is a sign of the strength of a working democracy. It is certainly not a weakness.

In Concluding

The GFA brought about a long awaited peace process in Northern Ireland stopping the continuing cycle of violence and preventing further suffering. The measures taken were brave, innovative and necessary but the compromises made could never take account of the huge sacrifice victims and families had already made. They hoped that once peace was established they would find out the truth of what had happened in their cases and that they would be acknowledged. This did not happen. Providing a framework for informing legacy families of what happened to their loved ones remains the unwritten chapter of the GFA.

A disproportionate approach to secrecy prevents trust being built between the authorities and the communities they serve, most importantly in regard to policing in NI. The previous legacy reports that remain classified should be reviewed and their classification lowered to allow as much information as possible to be placed in the public domain.

Many legacy stakeholders have called for a day to acknowledge and reflect on this tragic period and many have adopted the summer solstice, the longest day, for this purpose. A day of remembrance would allow everyone to reflect on what more we might have done and what we might still have to do in order to ensure that such loss is never allowed to happen again. I have witnessed at first hand the positive impact of such a day on victims and families. Until we acknowledge victims and survivors and the transgenerational trauma inflicted as a result of the Troubles, society will not properly heal.

My Kenova report highlights failures of the security forces and the state and many people focus exclusively on that. However, it was the PIRA that commissioned and sanctioned the activities of the Internal Security Unit . It was PIRA that committed brutal acts of torture and murder against those accused of being agents.

There have been no convictions of the perpetrators responsible for PIRA murders of those it accused of being agents. In my view, this is linked to a dogmatic application of the NCND policy. Not only does this prevent disclosure of information to families, applied internally it means legacy investigations have not been able to see a good deal of relevant material and properly apply the rule of law.

Those people who did assist the authorities in tackling the threat from terrorism by working as agents did so at great personal risk. These individuals would surely have expected the agencies they were working for to at least try to protect them and to bring to justice anyone who harmed or killed them.

The security forces have a duty to uphold their values: fairness, honesty, integrity and respect for human rights. When and how an organisation responds when faced with legitimate accusations of wrongdoing, demonstrates how closely it holds those values.

The state has a duty to ensure an independent and effective investigation is conducted whenever there are reasonable grounds to assess that it has contributed to or been complicit in serious criminality. This is a founding characteristic of a well-functioning democracy. It is critically important that those who keep society safe can be trusted with the authority and powers to do so and are accountable for their actions.

Kenova families remain frustrated that the recommendations from the Kenova report were fudged by the government of the day. In order for the ICRIR to succeed and for the encouraging comments being made by the current British and Irish governments to be well received by victims and families, surely the findings of the Kenova report should at least be acknowledged and accepted.

As the Chief Constable of the PSNI I am more aware than most of the need to secure the trust and confidence of all communities. That is something I will endeavour to do throughout my tenure in this privileged role.