Q&A

The terms of reference at No. 4 identify the individuals and groups within the scope of the review. General concerns that others may hold cannot be considered by the review, except to the extent that those of ‘special status’ are involved. The definition of 'special status’ is being kept under consideration, but the purpose of the review is to investigate concerns affecting the specific groups currently identified.

The start date is, to a degree, arbitrary but strikes a practical balance. It reflects the period adopted in the Chief Constable’s June 2024 report to the Policing Board and there is some advantage to adopting the same period for the purposes of the review, including in evaluating the information in that report. It is necessary to have clear parameters for the period under review, so to have a defined start date. In agreeing the terms of reference it was felt that to go back further than 2011 would substantially increase the work (and so the time it will take) for limited additional reassurance. As it is, a period of some 13 years to consider is a considerable period of time in terms of the work involved in reviewing PSNI conduct over that period. The period under review is being kept under consideration as the work proceeds.

The reviewer has been assured by the Chief Constable that all serving PSNI staff are required to cooperate with this review. The reviewer will also have full access to PSNI records. In effect, the reviewer has powers of compulsion in these respects, through the authority of the Chief Constable.

Although there are no formal powers of compulsion, any former PSNI staff are permitted and encouraged by the Chief Constable to engage with the review. Any person with relevant information is urged to contact the review, as indicated in the answer to the next question.

The review does not have any powers to provide legal remedies, nor authority to provide legal advice. Contributing information to the review does not affect the entitlement of anybody, if so advised, to raise a complaint with the Investigatory Powers Tribunal, or any other relevant judicial body.

There is a questionnaire available be downloaded on the website. That should be completed and returned in confidence to the reviewer. If you wish to submit documents to the review we will be in touch with instructions as to how that can be done, to a secure document repository.

Individuals are expected to identify themselves to the reviewer but will not be identified any more widely, including to PSNI. After discussion with the Group of Experts and Stakeholders (GoES), no individual contacting the review will be identified to them either. Anyone coming under suspicion of wrongdoing will not automatically be entitled to anonymity and will be warned accordingly.

In relation to wrongdoing, under the terms of reference at No. 17:  “any individual or group that is the victim of such wrongdoing shall be informed  … by the [Chief Constable], in so far as possible in compliance with applicable statutory and common law duties”. The main statutory duty that may prevent an individual being informed is the prohibition under s.57 of the Investigatory Powers Act 2016, in relation to specified warrants under that Act and the Regulation of Investigatory Powers Act 2000 (RIPA). Other legitimate reasons for non-disclosure include national security or the prevention of crime. The reviewer is committed to pressing for as much disclosure to anyone found to be a victim of wrongdoing as is possible under the law.

As set out in the answer to Q6, there is a presumption that individuals who have been subject to unlawful surveillance will be informed, subject to legal constraints. However, it will not generally be possible to confirm or deny to individuals or organisations whether they have been subject to police surveillance, given legal (as well as practical) limitations. It is nevertheless intended that the review should reach clear general conclusions in relation to PSNI conduct over the relevant period to enable reassurance as to lawfulness, or findings as to any unlawful practices, to be reached as the case may be.

The Chief Constable is ultimately accountable for sensitive information made available to the reviewer, in ensuring that disclosure contrary to the wider public interest is not made. Whilst there is a public interest in exposing wrongdoing, that may be outweighed by other public interests such as national security and the prevention of crime. The Chief Constable has to be responsible for making that judgement but has indicated that he is committed to maximising openness. The reviewer will actively press for that in relation to any findings, which may include proposing gists or redactions that serve that purpose.

There is no set time limit for the review, but both the reviewer and the Chief Constable are keen for it to proceed as rapidly as possible, consistent with ensuring that it is thorough and in a position to reach secure conclusions. The Call for Evidence period ends on 18 October 2024, and an update will be provided shortly after then as to the likely timescales for the review, leading to its conclusion. It is currently expected and intended the review should report well within a year of the terms of reference having been agreed (14 June 2024).

Deadline for evidence (as extended): the deadline for response to this call for evidence is extended (from 5pm on Friday 18 October 2024) to 5pm on Friday 1 November 2024.

Please email the reviewer at [email protected] 

The Review has received about 50 submissions to date from a mixture of individuals and organisations. Everyone who has contacted the Review is provided with an assurance of confidentiality – so will not be identified beyond the Review team (including not identified to the GoES advisory group) unless they come under suspicion of wrongdoing.

Out of the submissions received, just under half are from journalists, about a third are from lawyers, and about 10% are from current or former police officers. The remainder are from a variety of individuals or groups not falling within these categories.  About 5 of the submissions raise matters that fall largely or entirely outside my remit. Although the Call for Evidence has now closed, the Review team has not yet rejected any submissions on the basis that they have been sent outside the extended deadline of 1 November 2024.

Everyone submitting a questionnaire who indicated that they wished to submit additional documents has been given an opportunity to do that through provision of a time-limited link to a secure site.

Several of those making submissions to the Review have asked to be told if they have been subject to surveillance, which is addressed in the answers to questions 6 and 7 above.

Yes.

Paragraph 10 of the Terms of Reference states that the remit of the Review “is to investigate, evaluate and assess the propriety and legality of any surveillance by PSNI of individuals or groups of special status…” [emphasis added].

‘Targeted interception’ is currently provided for under Part 2 of the Investigatory Powers Act 2016 (the IPA 2016).  The use of the powers requires a warrant approved by the Secretary of State (or in in their absence a Minister).  The Review has been provided with access to documentation in relation to all forms of covert surveillance including any intercept so the Review has full access to any PSNI warrantry documentation over the relevant period.  All relevant documents are under consideration by the Review and no category of covert surveillance is excluded.

When publishing the Review’s findings, careful consideration will be given to the legal prohibition on disclosing the existence of such warrants. This prohibition is contained in statute and pre-dates the Review: see section 57 of the IPA 2016. The prohibition generally only applies to targeted intercept warrants and not to other types of authorisations for covert surveillance.

In accordance with paragraph 16 of the Review’s Terms of Reference:  “Where the Reviewer cannot make findings or recommendations publicly, he shall provide a Closed report to the [Chief Constable]”.

Paragraph 5 of the Review’s Terms of Reference (ToR) states:

“5. The review will not extend to any matter relating to ongoing proceedings before the IPT until such proceedings have been finally determined. The Reviewer will, however, have access to all material held by the PSNI, including that relevant to pending IPT proceedings, as set out further below.” [Underlining added]

The reason for excluding ongoing proceedings before the Investigatory Powers Tribunal (IPT) is to give proper respect to the IPT, as the statutory tribunal with legal powers of redress. That respect has been considered to require avoiding cross-cutting in relation to any investigation being carried out by the IPT. Once the IPT has embarked on an investigation, following a complaint, the view was taken in drafting the Terms of Reference (in close consultation with the GoES) that it was inappropriate for the Review to be conducting a parallel inquiry whilst the IPT proceedings are ‘ongoing’. Once the IPT proceedings have concluded, the matters will fall back within the Review’s remit.

At the time of drafting of the ToR it was clear that the IPT proceedings in McCaffrey and Birney were ongoing, with a substantive hearing in prospect. There was no more precise or concluded view as to the exact point at which IPT proceedings would be regarded as ‘ongoing’. The proceedings in McCaffrey and Birney have now concluded, so fall within the remit of the Review.

(The term ‘proceedings’ in relation to the IPT is used here and in the ToR to cover the full range of the IPT’s jurisdiction, including both claims under the Human Rights Act 1998 and complaints about relevant conduct. ‘Complaint’ is also used in this broad sense in relation to claims and complaints to the IPT.)

For the purposes of the Review, ‘ongoing proceedings before the IPT’ are identified as starting when PSNI is asked for a response to a complaint to the IPT. This clarification of the position has been reached following careful consideration with the GoES. It is a pragmatic position, because in most cases the Review will not know of a complaint to the IPT until PSNI is asked for information in response. It is also a principled position, because it is only from that point that an active investigation involving PSNI has started and that the Review risks cutting across the processes of the statutory tribunal with legal powers of redress, which is the position that the exclusion in the ToR is intended to avoid.

In summary, although the Review will not consider the details of specific cases that are the subject of ongoing IPT proceedings for the purposes of reaching any findings on those matters, the Review is maintaining a close awareness of developments in those ongoing IPT cases in order to inform its work.

The deadline for responses to the Call for Evidence expired on 1 November 2024. Whilst some late submissions have been accepted (and none refused on the grounds that they are out of time), it is unlikely that it will be possible to accept any further late submissions for the purposes of the main report currently intended to be produced in the summer of 2025. Of those making submissions to the Review only a small number are known to be the subject of ‘ongoing proceedings before the IPT’, as defined in the answer to Q.13 above. As at 2 May 2025 that number is 4, excluding one which does not involve anyone of ‘special status’ (as defined in the Terms of Reference) so would fall outside the remit of the Review in any event - and each of those 4 has been informed by the Reviewer of the position. The impact of ongoing IPT proceedings was considered in the Reviewer’s Progress Report of January 2025, which stated at paragraph 5.2:

“Under my ToR the Review will not consider any ongoing proceedings before the IPT until those proceedings have been finally determined. However, as detailed further below, I do have access to all material held by PSNI, including that which may be relevant to any IPT proceedings. Whilst the IPT has delivered its judgment in the important case of Birney and McCaffrey, there are other potentially relevant matters before it, including related proceedings brought by Vincent Kearney, a BBC journalist, that remain ongoing. The point at which these further matters will fall within my remit is beyond my control.”

At the conclusion of the Progress Report it was stated:

“As highlighted above, whilst there are ongoing IPT proceedings considering complaints that would otherwise be relevant to my review, I currently consider that these should not prevent me from producing at least an interim report that makes findings and recommendations on central issues of concern – even before all of those IPT proceedings have necessarily been concluded.”

That remains the position. However, the first sentence of paragraph 5.2 (quoted above) requires some elaboration. It is correct that the Review will not consider specific cases that are the subject of ongoing IPT proceedings for the purposes of reaching any findings on those matters. Nonetheless, developments (including the materials disclosed by the PSNI in the IPT proceedings) in ongoing IPT cases are being considered carefully by the Review, both as a cross-check against the independent searches done by the Review team, but also to maintain a general awareness of that subject matter in the process of reaching conclusions and recommendations in the main report - even accepting that some specific cases are excluded from the remit by paragraph 5 of the ToR for the time being.

The main report will include recommendations as to any further consideration of such IPT proceedings as are ongoing at the time of that report, after those proceedings have been concluded by the IPT.