PSNI ‘engagement’ not to blame for decision not to prosecute over controversial Bobby Storey funeral

It follows a decision by the Northern Ireland Public Prosecution Service (PPS) not to prosecute 24 individuals reported in connection with attendance at the funeral in west Belfast.

Simon Byrne said while they did engage with the organisers, this was only “to fulfil our key responsibility to manage public safety”.

The PPS acknowledged that the ‘Coronavirus Regulations’ had “become extremely difficult to navigate and, in certain respects, inconsistent” and amounted to “an insurmountable hurdle to a successful prosecution”.

The funeral of senior republican Mr Storey was one of the most controversial events to occur during the coronavirus pandemic in Northern Ireland.

More than 1,000 people lined the streets for the funeral procession on June 30, including senior Sinn Fein representatives, despite strict rules limiting public gatherings.

Mr Byrne said while it noted the PPS commentary that “our engagement could have afforded suspects a reasonable excuse”, the PPS has decided that “the evidence, as presented, does not pass the first stage of its prosecutorial test as it is unlikely to result in a conviction”.

Mr Byrne said the PSNI acknowledges the “very significant levels of public interest in this particular case”.

“Given some of the funeral participants were members of our accountability body and our employer, and the significant public concerns about the role of police, I asked Deputy Chief Constable Mark Webster of Cumbria Constabulary to lead the investigation into the funeral,” he said.

“Mr Webster and a team of investigators reported 24 individuals to the PPS, recommending prosecution. The investigation moved as quickly as the evidential procedures and legal representations would allow in accordance with the procedural framework and due process. I want to place on record my thanks to Chief Constable Michelle Skeer for her support in releasing Mr Webster to this task.”

Mr Byrne added: “The PPS decision points to the ambiguity and changing nature of the Coronavirus Regulations in force immediately before and on the day of the funeral which, in their view alone, amounted to an insurmountable hurdle to a successful prosecution.

“There were nine changes to the Coronavirus Regulations up to this stage of the pandemic which, in the words of the Director of Public Prosecutions himself, ‘had become extremely difficult to navigate and, in certain respects, inconsistent’.

“The decision also addresses the role of the police in our engagement with the organisers. We did engage with the organisers. This was to fulfil our key responsibility to manage public safety. This approach was in line with our tried and tested approach to any major public event and is fully in keeping with UK police guidance.

“We did not enter into any agreements with the organisers as to their liabilities. We did not make the organisers any promises in terms of the Regulations.”

Mr Byrne said police commanders did inform the organisers of the need to stay within the Regulations and again reminded the stewards of this on the day of the funeral.

“We welcome that the PPS concluded that there was no evidence to the contrary,” said Mr Byrne. “This is further illustrated by the fact that we reported 24 people to the PPS with a recommendation for prosecution. We note the PPS commentary that our engagement could have afforded suspects a reasonable excuse. However, it is also clear from what the PPS have said that the prosecution decision outcome would not have been different even if our approach to engagement had been.”

He added: “The decision not to prosecute does not change our view that what happened last summer when large numbers of people chose not to ‘stay at home’ at the height of a global pandemic was unnecessary, irresponsible and insensitive. It was wrong.

“We understand the immense sacrifices made by people during this pandemic.

“Enforcing the Coronavirus Regulations has been a consistently challenging and often uncomfortable role for my officers as the Regulations have, by their very nature, involved restricting the rights of the public, but we recognise the requirement to do so in our common interest.

“We will continue to support the response to this health emergency by promoting adherence to the Regulations.”

The PPS decisions related to four funerals, including that of Mr Storey, after four police files were submitted for consideration of potential offences under the Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020.

The separate files each relate to alleged offending by a total of 33 individuals at funerals or associated events during 2020 during which government regulations were in place to help curb the spread of Covid-19.

The PPS said after “a thorough consideration of the evidence and information contained on each of the files submitted by the PSNI”, it has decided:

• Not to prosecute 24 individuals reported in connection with attendance at the funeral of Mr Storey on June 30;
• To prosecute two individuals reported in connection with attendance at a funeral in County Tyrone in April 2020;
• To offer a diversionary disposal to one individual reported in connection with attendance outside the home of a recently bereaved family in west Belfast in April 2020; and
• To offer diversionary disposals to six suspects reported in connection with attendance at a funeral in east Belfast in early June 2020.

The PPS said all decision-making in the files involved “an impartial and independent application of the Test for Prosecution by a team of experienced prosecutors”.

It added: “The evidence on each file was considered on its individual merits in the context of the specific Regulations in place on the date of the alleged breach.

“Decisions on the Mr Storey funeral file were concluded with the assistance of advice from experienced Senior Counsel.”

Due to the high level of public interest in perceived breaches of the Coronavirus Regulations and particular concern around the events of June 30, 2020, the Director of Public Prosecutions, Stephen Herron, issued a statement explaining why the Evidential Test for Prosecution was not met against any of the individuals reported in connection with the Storey funeral.

He said: “I acknowledge the widespread public concern that events on June 30, 2020, appeared to involve breaches of the Regulations by individuals in positions of responsibility, as the numbers attending the funeral were large and not confined to close family.

“It is relevant that by the time of this funeral, the original Regulations of March 2020 had been amended on nine separate occasions through a combination of deliberate relaxation and re-working at pace to meet policy change. As a result, on June 30, the Regulations had become extremely difficult to navigate and, in certain respects, inconsistent.

“Furthermore, organisers of this particular funeral and police had engaged against the backdrop of evolving Regulations in an attempt to ensure that a balance was struck in the funeral arrangements between respecting the sensitivity of the occasion and minimising any risk to both public health and safety.”

Mr Herron added: “Prosecutions can only be brought where the available evidence provides a reasonable prospect of proving, beyond reasonable doubt, a breach of the criminal law.

“As a result of the factors considered we have concluded that the prosecution could not prove any breach of the Regulations to the required standard. Whether considered alone or in combination, the two reasons outlined – that is the lack of clarity and coherence within the Regulations and the prior engagement between organisers and police – would pose an insurmountable difficulty if any of the reported individuals were prosecuted.

“This is because they could all avail of a defence of reasonable excuse in terms of their actual or reasonably perceived compliance with a complex set of Regulations and/or their reliance on the prior engagement with PSNI.

“The law as it applied to the Mr Storey funeral was changed significantly on the evening before the funeral and further amended two days later.  Even though prosecutions are not being brought on this occasion, they are being brought for breaches in relation to funerals at a point in time when the Regulations were clear and coherent.”

Mr Herron said the law relating to permissible conduct in the course of the pandemic is not always clear cut and this “can be challenging when it comes to enforcement of what are essentially health regulations in a criminal justice context”.

He added: “Prosecutions can only be considered in light of the Regulations in force at the particular point in time of the alleged breach. It was necessary for all relevant facts and circumstances in this case to be considered carefully and independently following a thorough investigation.”

The Director acknowledged the sensitive and emotional role funerals play in our society.

“The restrictions in place over the last 12 months have had a significant impact on the way families and friends have been able to say goodbye to their loved ones,” he added.

“Many families may feel it was unfair they made sacrifices or compromises in funeral arrangements. We should not lose sight of the important role that these Regulations have played in reducing the transmission of the virus by discouraging social contact in large numbers.

“Throughout the pandemic, the Regulations have had clear value and all those who carefully abided by the letter and spirit of the law have played their part in protecting public health.”