Operation Kenova – Witness Strategy V2

Operational Context

Op Kenova is an independent major crime investigation into a series of historic allegations surrounding the alleged activities of an individual codenamed ‘Stakeknife’ that occurred during the period commonly referred to as the ‘Troubles’

The focus of the Investigation is to ascertain whether there is evidence of the commission of criminal offences by the alleged agent including, but not limited to;

  1. Murders;
  2. Attempted murders; and/or
  3. Unlawful imprisonment.

The investigation will also determine whether there is evidence of criminal offences having been committed by other Republican para-militaries, members of the British Army, the Security Services or other Governmental personnel.

The overriding principle of the Investigation is to discover the circumstances of how and why people died, to discover the truth regarding those offences set out within the Terms of Reference.

This strategy has been prepared to set out the Op Kenova approach to the identification, contact and coordination, securing of evidential products and security and personal wellbeing of witnesses to events subject to Operation Kenova.

In the context of the historic nature of this inquiry there has been considerable developmentand improvement in Police techniques and the laws that govern evidence.

These developments include:-

  • The introduction of the Police and Criminal Evidence Act (PACE) 1984. PACE became the legal framework for police evidence gathering in relation to investigations from 1985/6;
  • Introduction of tape and video recorded interviews of suspects, which took the place of hand written contemporaneous notes;
  • Introduction of ‘Significant Witness’ testimony using audio and video tapes;
  • Introduction of Family Liaison Officers for victims of crime and their families;
  • The introduction of HOLMES, the computer system now universally utilized for murder investigation and linked series serious crime;
  • The introduction of significant policy guidance and doctrinein the field of murder investigation following the publication of the Steven Lawrence Enquiry;
  • Substantial advancement in forensic examination and opportunity.

The advancement in doctrine and case law provides guidance to interviewing officers. In particular with regard to:-

  • Addressing witnesses in groups
  • Stimulating witness memory
  • The presence of previous witness accounts

Relevant Case Law

(1) R. v Arif, Court of Appeal (Criminal Division) 1993.

(2) R .v Shaw, Court of Appeal (Criminal Division) 2002.

(3) R. v Momodou, Court of Appeal (Criminal Division) 2005.

(4) R. v Skinner, Court of Appeal (Ciminal Division) 199

Relevant Police/Legal Doctrine

(1)Homicide Investigation Manual 2006 – NPIA

(2)Family Liaison Officer Guidance 2008 – NPIA

(3)Major Incident Room Standard Administrative Procedures – 2005

(4)Achieving Best Evidence in Criminal Proceedings2011 – Ministry of Justice

Additional legal Advice will be sought as the requirement arises.

Overarching Aims

The overarching purpose of this strategy is to provide a framework that will support the Senior Investigating Officer (SIO) in achieving best evidence from those witnesses that feature throughout the lifetime of the Op Kenova investigation.

To assist the SIO in achieving this operational objective this strategy will outline a 3 stage process that is to be adopted by all officers engaged in the Op Kenova Investigation. These stages can be summarised as follows;

Stage 1

Through a process of engagement with solicitors, Non-Government Organisations and other prominent community figures identify potential witnesses/victims. To secure their confidence and commitment to the enquiry the investigation will arrange face to face meetings between Op Kenova senior officers and witnesses/victim families[i].

As the inquiry progresses the SIO will identify and exploit opportunities for identifying new witnesses/victims that may not have previously spoken to police;

Stage 2

Introduction of investigation team to the families and/or witnesses and the securing of evidential statements. To support this strategy the SIO will appoint a Witness Liaison Coordinator (WLC).

Stage 3

Post interview management of witnesses in accordance with their needs and the effective mitigation of any identified risks.

Witness identification;

  • Senior engagement with solicitor’s and Non-Government Organisations (NGO’s) acting for and on behalf of victims;
  • Senior engagement with prominent community leaders including members of the clergy and political parties;
  • Identify witnesses that have provided evidence in previous historic enquiries;
  • Future targeted media appeals using all available platforms;
  • Future targeted house to house enquiries;
  • Future Senior Leadership community engagement forum.

Since the public announcement and launch of Operation Kenova and the public sharing of the Terms of Reference (TOR) via the Op Kenova website, various methods have been used to identify witnesses/victims that may fall within the published TOR. Open source research has been undertaken on the myriad of books written on the subject as well as material on the world wide web and media sites. Contact has been established with numerous solicitor firms, victim’s groups and prominent community leaders within Northern Ireland. This has resulted in a number of families coming forward to suggest the death of their loved one would fall within the TOR of Op Kenova. Having identified a list of possible cases through this process it is proposed that the three stage process in this strategy is commenced. This methodology combined with the ongoing retrieval and review of evidence and intelligence documents and the commencement of a full forensic review, will allow each case to be assessed against a defined inclusion criteria and enable the SIO to determine which murders are to be part of the Op Kenova investigation.

Historic witness evidence is currently being reviewed. To date most of this is thought to be material collected under the auspices of ‘Steven’s 3’ investigation ‘Operation Waresley’.

It is anticipated that a number of historic witnesses may be untraceable, in poor health or deceased. Limited actions have been initiated to trace such witnesses at this stage; primarily this has been done through the immediate family at public meetings. Most families are represented by solicitors and survivor groups.

Witness testimony will be reviewed on an individual basis, taking into consideration:-

  • The age, health and memory of the witness. It is anticipated that specifically, witnesses will need to see their original account and be assisted by looking at plans and photographs.
  • Many of the witnesses have previously communicated their recollection of events through interviews. All necessary efforts will be made to ensure that best evidence is obtained.
  • The passage of time provides real scope to re-examine the testimony of witnesses and suspects. Any potential ‘change of allegiance’ amongst the witnesses will be explored and fully exploited by the investigation.

This strategy will continue to be a live documentand will evolve as the investigation progresses. The strategy will set out how witnesses will be categorized, the prioritization criteria for interviews and the methodology that will be used in obtaining the victim/witnesses account.

As the investigation evolves the SIO will utilize other operational tactics in order to appeal for new victims/witnesses. Subject to the operational requirement these tactics will include;

  • the use of targeted house to house enquiries;
  • appeals via all relevant media platforms; and
  • through face to face engagement with local community groups/forums.

Investigating officers contact with victims/witnesses;

  • Face to face meetings with Kenova senior leadership to build trust and confidence;
  • Introduction of Family Liaison co-ordinator/witness co-ordinator;
  • Introduction to investigative team;
  • Assessment stage;

Over the past three decades the political and ideological landscape in Northern Ireland has changed considerably. There remains, however, a sincere feeling among many victims of being consistently let down. This has resulted in a lack of trust and confidence in the Authorities.

Great care and deliberation must be taken as to the strategies and tactics employedby Op Kenova officers dealing with witnesses subject to historic recollection. In particular the families and friends of victims may have a real sense of vulnerability on a multitude of levels. These anxieties and vulnerabilities will need to be acknowledged and managed by Kenova.As a consequence Induction training will provide officers with the historical context and tools to assist them in managing victim/witnesses concerns.

The families of those victims/witnesses already known to Kenova and their representatives have been addressed personally by Mr. Boutcher, Mr. Surtees and members of the Family Liaison Team. There has been an open and frank sharing of information from both sides and a real endeavour to build bridges, trust and confidence. These meetings have featured the fielding of questions and a comprehensive outline of the terms of reference with a view to managing the expectation of families.

The meetings have occurred in both individual family and group settings. The initial series of meetings with families have been arranged through contact with solicitors already representing those families or victim care groups such as WAVE and Relatives for Justice acting on their behalf. This has provided a good opportunity to listen to people’s thoughts and concerns and has allowed for detailed explanations into the direction, culture and future intentions of Operation Kenova.

The appointed Family Liaison Coordinator (FLC) has been instructed by the SIO to maintain regular contact with the families and their intermediaries/support mechanisms. The maintenance of regular contact and the provision of timely information to the witnesses/family is seen as a key enabler to the building of confidence and trust and ultimately securing support in the form of evidential statements. The FLC will also manage the introduction of the investigation team into individual families to ensure continuity in messaging and service delivery. The FLC will work closely with the WLC to deliver the objectives of this strategy.

Witnesses, who by their relationship to another witness, or suspect, or their proximity to events, or by their own perception may be vulnerable to intimidation or fear of intimidationwill be dealt with professionally and with due sensitively. The WLC will ensure bespoke risk assessments will be completed with the assistance of intelligence and support from PSNI for all witnesses. A risk Matrix will be established to mitigate any threat in line with the guidance contained within the Murder Investigation Manual

Any approach to victims/witnesses will be direct and discreet; their views should be sought on who else may be allowed knowledge of their involvement. Specific account will be taken of any medical conditions. The diverse needs of our witnesses is likely to necessitate different levels of management and support.The assessment process may lead to the identification of the following categories of witness:-

-Vulnerable and intimidated persons.

-Reluctant witnesses.

-Hostile witnesses.

-Key Significant Witnesses

-Retired and serving Police Officers.

-Retired and serving Military personnel.

-Retired and serving Security Services personnel.

-Forensic, expert and academic witnesses.

A fundamental principle that underpins this strategy document is that ALL witnesses will be treated equally with respect and total professionalism.

It is anticipated that during the course of the Op Kenova investigation witnesses will be identified throughout extensive parts of the Northern Ireland community and from a number of different government/official organisations. This may include personnel/officers/officials from;

  • the PSNI, (formally the RUC);
  • The British Military and/or contractors working on their behalf;
  • Security Services (albeit retired members);
  • The Historic Enquiries Team;
  • Police Ombudsman Office.

Witnesses that serve or have previously served within these organisations will be afforded the same treatment as other witnesses who are not associated with these organisations. This will help ensure that Kenova retains the confidence and trust of the wider community and are compliant with the HMIC review recommendations into the Historic Enquiry Team (HET) 2013 and 2015.

Witness Interview Strategy

  • Identifying andbriefing of interview teams;
  • Objectives of interview;
  • Identification of potential key significant, vulnerable and/or intimidated witnesses;
  • Debrief of interview.

Interview teams will be experienced detectives/investigators with the relevant training and expertise to undertake the end to end interview process. They will be familiar with their legal obligations and relevant doctrine on the issue of interviewing. It is the responsibility of the appointed Investigating Officer to ensure that the identified interview teams are fully briefed as to the contents of this strategy and the operational objectives of the interview. It will also be the Investigating Officers responsibility to ensure that interview teams are afforded the necessary logistical support to enable the interviewing process and that any non-police venue utilized is subject to a Risk Assessment.

The primary objective of the interview strategy is to secure the purest witness accounts available. It is accepted that there will be various levels of ‘witness contamination’, where individuals have given countless accounts to different agencies, lawyers and members of the media through the passage of time. Some witnesses may require assistance with recollection from previous statements, accounts, photographs or newspaper cuttings.

The process of securing evidential statements will involve meeting individual family member. These meetings will be arranged through the solicitors firms and the victim’s groups representing the families. The F.L.C. will act as a conduit for the investigation making introductions to the interviewing team and Investigating Officer. Detectives/investigators undertaking interviews will remain with the families throughout the life of the investigation in order to provide consistency and build trust and confidence.

The detectives/investigators and Investigating Officer entrusted with the interview will familiarize themselves with notes taken during any previous meeting with Op Kenova senior officers. They will also be afforded access to any previous statements made formally in pursuance of other investigations such as the Steven’s 3 or Historic Enquiry Team (HET)investigations, coronial inquests or statements made informally to the press.

The interview teams will provide the families/witnesses with a comprehensive outline as to the processes and consequences of providing witness statements. In particular they will;

  1. Provide a detailed explanation to victim’s/witnesses of the meaning of making a formal statement in law and the obligations under s9 to provide evidence to a court where necessary;
  2. Make an initial assessment as to the potential evidence that the victim/witnessmay provide. Is the witness a potential Key Significant Witness, can they provide evidence relevant to the Op Kenova Terms of Reference or do they provide impact evidence on a case relevant to the TOR of Op Kenova?;
  3. Assess any vulnerability factors;
  4. Decide upon the most appropriate method of recording the interview paying particular attention to the guidance contained within Achieving Best Evidence and the Murder Investigation Manual.
  5. Obtain the statement.

Objectives of Interview

  • To obtain an accurate and reliable account from victims and/or witnesses about matters under police investigation being mindful of how recollections can be affected by the passage of time;
  • To allow individuals an opportunity to say what they wish about relevant events;
  • To put pertinent evidential matters to those individuals;
  • To identify further possible witnesses;
  • To identify possible suspects;
  • To identify any other evidential opportunities (forensic etc);
  • To obtain impact evidence for court.

There may be occasions when witnesses become implicated in crime through the testimony of others or by virtue of self-incrimination. It is anticipated that this may involve crimes such as being a member of a proscribed organization or where they have taken a minor role in the commission of offences linked to this investigation. Op Kenova interview teams faced with such an eventuality cannot offer immunity from prosecution and should seek the guidance of the Investigating Officer before proceeding with any witness interview. The advice and views of the Kenova counsel, Jonathon Laidlaw QC and the policy direction of Director of Public Prosecutions NI are being sought and amendments will be made to this strategy upon receipt of this advice.

At the conclusion of the interview a full debrief will take place led by the Investigating Officer. Any fast track action opportunities will be identified and acted upon as a consequence of this debrief. The Investigating Officer will further ensure that all materials generated as a consequence of the interview process are properly retained and secured for the purposes of CPIA. Any immediate concerns raised by those who have provided statements should be addressed at this debrief and in accordance with the Risk Matrix.

Post Interview Witness Strategy

  • Appointment of Witness Liaison Coordinator (WLC);
  • Management of key significant, vulnerable and/or intimidated witnesses;
  • Management of the victim/witness Risk Matrix process;
  • Pre-trial support and preparation

Due to the volume, timescale and potential vulnerability of witnesses a WLC will be appointed (Tier 5 trained and experienced in ABE interview) whose responsibilities will include:-

  • Determine the priority afforded to witness interviews;
  • Liaison with the MIR regarding supervision and management of allocated actions as they pertain to witnesses;
  • Ensuring interview teams are appropriately trained, have recent interviewing experience and are provided an appropriate briefing prior to engagement with victims/witnesses;
  • Ensuring post interview debriefs are conducted and all materials/exhibits are retained in accordance with CPIA;
  • Addressing any witness vulnerability issues in accordance with the published Risk Matrix; seeking expert advice and establishing individual strategies where appropriate;
  • Acting as the primary point of contact for witnesses, including any communication with Solicitors, NGOs or other intermediaries;
  • Establishing lines of communication to ensure liaison with appropriate Witness Care Units at Court;
  • Ensuring all subsequent witness contact is recorded in an appropriate log for transparency and CPIA purposes.

Post interview the WLC and FLC will work very closely to ensure consistency of messaging and to ensure ALL contact with families, witnesses/victims are appropriately recorded.