Terms of Reference

As agreed between the Reviewer and the Chief Constable of the PSNI on 14 June 2024 (with amendment to paragraph 10, as agreed on 29 November 2024)

 

These terms of reference were drafted by the Reviewer in close consultation with the GoES (the group identified below). The terms have been approved by the GoES and have been agreed by the Chief Constable of PSNI without amendment.
 

1. Concerns have been raised by persons and groups which attract ‘special status’ under surveillance legislation arising from material disclosed in ongoing Investigatory Powers Tribunal (IPT) proceedings. These concerns, which engage principles of press freedom and legal professional privilege, have been picked up in media comment and reporting, as well as by elected representatives across the political spectrum in Northern Ireland. 

2. In the light of these concerns the Chief Constable of the PSNI (CC) considers it is in the public interest, including for the purpose of enhancing public confidence in policing in Northern Ireland, that a special review of the use of PSNI conduct in this area is conducted by senior independent Counsel, as an independent special reviewer (“the Reviewer”). 

3. This review is pursuant to the CC’s duties and accountability to the Northern Ireland Policing Board under the Police (Northern Ireland) Act 2000, as amended, including under sections 33A (Provision of Information to Board), 58 (Annual report by Chief Constable to Board), 59 (General duty of Chief Constable to report to Board), and 76A (Disclosure information and holding of inquiries). 

4. For the purposes of this review, those of ‘special status’ are journalists, lawyers and non-governmental organisations (NGOs), the Police Ombudsman for Northern Ireland (PONI) and the Northern Ireland Policing Board (NIPB). The scope of the review may be extended to any other professions or groups with the agreement of the PSNI CC. 

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.
 

6. These Terms of Reference are subject to review by agreement between the CC and the Reviewer, as required.

Group of Experts and Stakeholders (GoES)

7. A group of experts and stakeholders shall be established. The membership of the group is by nomination by the CC, following consultation with the Reviewer and existing members of the group. It is currently intended that the group should comprise the following individuals and representatives: 

Individuals 

  • John Wadham, in his capacity as Human Rights Advisor to the Northern Ireland Policing
  • Baroness Nuala O'Loan DBE
  • Martha Spurrier, barrister

Representatives from the following bodies (with named representatives): 

  • Amnesty International UK, Patrick Corrigan
  • Committee on the Administration of Justice, Daniel Holder
  • Northern Ireland Human Rights Commission, Alyson Kilpatrick
  • Law Society of Northern Ireland, David A Lavery CB
  • The National Union of Journalists, Seamus Dooley

8. The group shall assist in (a) informing the scope of this review and (b) targeting the work of the Reviewer. For that purpose the group may (if considered desirable) devise its own terms of reference, in consultation with the Reviewer, and subject to approval of the proposed terms of reference by the CC before adoption. The group and its members will not have decision-making powers and are not accountable for the review.

9. The CC has made available to the group a senior officer (Temporary Assistant Chief Constable Ryan Henderson) from PSNI to advise in relation to policing matters and attend discussions, subject to the invitation of the Group.

Method and remit

10. Subject to paragraph 5 (pending IPT proceedings) 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 (as defined at paragraph 4 above) during the period from 1 January 2011 to 1 November 2024 (being the date on which the extended deadline for the Call for Evidence expired). The dates of the review period may be reconsidered during the course of the review, which may lead to amendment pursuant to paragraph 6 above. The Reviewer shall make any recommendations as appear appropriate in the light of the findings of the review.

11. The Reviewer shall engage closely with the GoES in conducting his review.

12. The Reviewer, as a senior barrister with current security clearances at the highest level, shall have unrestricted access to PSNI records, material, and personnel for the purposes of his reviewing function. All PSNI personnel shall afford the Reviewer full cooperation in providing information and access for the purposes of his reviewing function. Any former PSNI personnel identified by the Reviewer will be formally authorised and requested by the CC to provide full cooperation to the review.

13. The Reviewer, after consultation with the CC and subject to the CC’s written consent, may disclose information to the GoES. In seeking to maximise the openness of the review, such disclosure might need to be in ‘gisted’ or redacted form for the purposes of protecting legitimate sensitivities, applying a test equivalent to that for public interest immunity in civil proceedings.

14. The CC shall meet the costs of the Review and provide such logistical support and facilities as may reasonably be required by the Reviewer. Subject to discussion and agreement with the CC one or more assistants to the Reviewer may be appointed, if requested by the Reviewer.

Reports

15. The Reviewer, in conducting his review, shall inform the PSNI of any matter which in his opinion should be referred to the Investigatory Powers Commissioner's Office (IPCO). 

16. The Reviewer shall issue public-facing reports, including any recommendations made, to the CC, as required, for publication by the PSNI. In any reports submitted to the CC for publication, the Reviewer and the CC shall seek to maximise the openness and transparency of his findings and recommendations, in so far as consistent with statutory constraints and legitimate sensitivities - subject only to which the CC shall publish any report promptly. Where the Reviewer cannot make findings or recommendations publicly, he shall provide a Closed report to the CC. 

17. In so far as any wrongdoing is discovered in the course of the review, any individual or group that is the victim of such wrongdoing shall be informed of by the CC, in so far as possible in compliance with applicable statutory and common law duties.

Legal framework

18. As publisher the PSNI must act in the public interest, including the public interest in the due administration of justice, accountability for any unlawful or improper practices, compliance with human rights obligations, and compatibly with other relevant legal obligations including those owed under: 

(a) Statute 
e.g. the Official Secrets Act 1989, Human Rights Act 1998, Investigatory Powers Act 2016, Regulation of Investigatory Powers Act 2000 and the retained General Data Protection Regulation and Data Protection Act 2018; 

(b) Public law 
i.e. common law obligations to act lawfully, fairly and reasonably; 

(c) Private law 
e.g. under the general law of confidence, defamation and misuse of private information; 

(d) Express and implied undertakings 
e.g. under information-sharing agreements, protocols and memoranda of understanding entered into with other public authorities and ordinary obligations owed to sources of information; 

(5) Codes of Ethics 
i.e. issued by the Northern Ireland Policing Board and the College of Policing.

Information handling

19. The Reviewer shall at all times adhere to with PSNI’s Security classification standards. Members of the GoES agree in principle to signing undertakings of confidentiality to enhance the level of access to potentially sensitive information that may be shared by the Reviewer.