2. Mr Alan Todd

MR ALAN TODD (affirmed).

Questions From Counsel to the Inquiry

Mr Scott: Good afternoon, Mr Todd.

Mr Alan Todd: Good afternoon.

Counsel Inquiry: Thank you for your assistance to the Inquiry. You provided the Inquiry with a witness statement dated 31 October 2023, and that’s up on screen. At page 22 is your signature and the statement of truth. Can you confirm that the contents of that statement are true?

Mr Alan Todd: That’s correct.

Counsel Inquiry: And you’re content for that to be relied on for the purposes of the Inquiry?

Mr Alan Todd: I am.

Counsel Inquiry: If I could just quickly go over your background. So you were appointed to the rank of Assistant Chief Constable in the Police Service of Northern Ireland in 2016, a position that you held until July 2023 when you retired?

Mr Alan Todd: That’s correct.

Counsel Inquiry: You’ve got more than 30 years’ experience as a police officer prior to your retirement and you’ve been decorated with the King’s Police Medal for distinguished service?

Mr Alan Todd: That’s correct.

Counsel Inquiry: And in your role as Assistant Chief Constable, you were responsible for local policing within Northern Ireland and in particular in relation to the pandemic you were responsible for all aspects of the police response to Covid-19?

Mr Alan Todd: That’s correct.

Counsel Inquiry: I just want to briefly outline the Police Service of Northern Ireland. It’s correct that it’s a single police service, it’s got responsibility for policing the whole of Northern Ireland?

Mr Alan Todd: That’s correct.

Counsel Inquiry: And it has about 6,600 police officers and 2,300 police staff. In terms of staff size and territorial scope, how does the PSNI compare to other police services across the UK?

Mr Alan Todd: PSNI is one of the larger services in the United Kingdom and that reflects the fact that, as a unitary police service we are standalone and self-sufficient in many functions that would otherwise be shared in the rest of the United Kingdom, but there’s also a piece of the strength of the organisation, has its history with the conflict in Ireland, in Northern Ireland, and the various requirements that have arisen over time from that.

Of course, the Patten Report would have recommended a service, in similar circumstances, to be 7,500 officers, it’s now substantially less than that, but that’s the background, my Lady.

Counsel Inquiry: Thank you. There are two broad oversight bodies, so you had the Department of Justice, which provides for the governance of the PSNI, is that correct, but it doesn’t have any operational oversight of the PSNI?

Mr Alan Todd: In common with other police services across the UK, it’s generally regarded policing as what’s known as operationally independent –

Counsel Inquiry: Yes.

Mr Alan Todd: – and operates within a triple lock, generally the ministerial level on one side and the oversight body being the Policing Board on the other.

Counsel Inquiry: You do have the Policing Board, and that has the effective oversight of the delivery of the policing service; is that right?

Mr Alan Todd: That’s correct.

Counsel Inquiry: I just want to touch upon the relationship between PSNI and the National Police Chiefs’ Council?

Mr Alan Todd: Yes.

Counsel Inquiry: The NPCC. So you say in your statement that:

“The role of the NPCC in relation to PSNI during the Covid-19 pandemic was coordinating and representative, in that it acted as a conduit for information sharing between forces and had some engagement with Whitehall on behalf of policing interests. However, the NPCC played no role in the enforcement of Covid-19 regulations in Northern Ireland and it has no operational directive powers in relation to PSNI or any individual officer.”

That encapsulates the relationship the PSNI had?

Mr Alan Todd: It does. Having said that, we do regularly rely on NPCC structures across a whole range of policing disciplines, public order, public safety policing, firearms policing, national standard – anything that involves the national standard we would strongly rely on the research, the best practice that arises and is disseminated through NPCC.

Counsel Inquiry: There was a national standard in relation to the response to the pandemic in terms of Operation Talla, is that right?

Mr Alan Todd: There was indeed, yes.

Counsel Inquiry: Would you be able to provide – I know my Lady has heard this a number of times but would you be able briefly describe –

Lady Hallett: Four Es coming up?

Mr Alan Todd: Indeed, and I know you have been given several versions of that, my Lady, over time, but it was engage, encourage, I always forget them myself actually sometimes. It was to engage with the members of the public in the first instance, to explain the regulations to them, to encourage their participation and adherence to those, and if that was unsuccessful and it was deemed to be proportionate then to move to the fourth E, which was enforcement. So you will see in police documentation, you will see in my piece from time to time, talking to staff, sometimes we talk about the three Es and then the fourth E for that very reason.

Lady Hallett: Can you speak a little more slowly, Mr Todd.

The Witness: Certainly.

Lady Hallett: We have been pressing the stenographer and putting pressure on her all day, so …

The Witness: I apologise.

Mr Scott: In terms of Operation Talla, was that something that was created specifically for the response to the pandemic or was it something that was effectively an operation that was in place already, it just needed to be tweaked to respond to the –

Mr Alan Todd: Operation Talla was put in place by NPCC in response to the pandemic, I’m not aware of it being in place before that, and we adopted the operation name, as the many other pieces that we adopted with it, as a response to the pandemic as a standalone and it wasn’t something that pre-existed that time.

Counsel Inquiry: I just want to talk about the structures within PSNI that formed in response to the pandemic, so you were the gold commander?

Mr Alan Todd: That’s correct.

Counsel Inquiry: And the gold commander has strategic responsibility for, effectively in this case, the response to the pandemic; is that right?

Mr Alan Todd: That’s correct.

Counsel Inquiry: And –

Mr Alan Todd: Well, actually, for the running of the organisation and I know the Inquiry understandably focuses on policing the pandemic, but actually my role as gold commander was about navigating the organisation through the pandemic and actually when we talk about our specific role in relation to the pandemic, which takes you into the world of regulations and enforcement, in the early stages that was a very minor consideration for policing and for me as the gold commander, you know, COBR briefings through NPCC would have indicated working assumptions of absence in the workplace of between 35% and 40%, so the bigger strategic question for me as a gold commander is: how do I continue to operate an effective police service to the communities across Northern Ireland, with 40% absence, with a pandemic with all the – how do we create safe working spaces, how do we create safe – how do we run contact management centres, how do we investigate crime, how do we make provision for victims of potentially rising domestic abuse, how do we provide those services and, if forced to make choices, where are those choices about service delivery going to be made.

So those are actually – if you look at my to-do lists in the early days and weeks of the pandemic, strategically planning the organisation’s path through that, my Lady, was as big – actually a far bigger concern, because policing doesn’t stop just because there’s a pandemic and how we continue to do that with the projected absences and pressures the organisation was likely to face, were probably focusing most of my time. How we engage –

Counsel Inquiry: Sorry, Mr Todd, is there any chance you can speak a little bit slower and keep your volume up a fraction as well, please.

Mr Alan Todd: So those were the big strategic items for us as a police service and we would have reflected that into discussions around structures, responsibilities and what else we could do to reasonably assist with the pandemic policing.

Counsel Inquiry: Thank you. I just want to focus on one aspect, a small amount of that –

Mr Alan Todd: Sure.

Counsel Inquiry: – in terms of how the coronavirus regulations themselves were enforced and the approach using the four Es, so all the stages prior(?) to that, but again, I think it’s fair to say that that’s a part not the whole of your role?

Mr Alan Todd: Indeed.

Counsel Inquiry: You had a silver commander who –

Mr Alan Todd: Yes.

Counsel Inquiry: – worked to you who was responsible for implementing gold, in this case your strategy, and other decision-making; is that right?

Mr Alan Todd: Yes.

Counsel Inquiry: And silver commander would have had a support team?

Mr Alan Todd: Yes.

Counsel Inquiry: So the silver commander, together with the support team, were responsible for day-to-day work and operational decision-making; is that right?

Mr Alan Todd: Correct.

Counsel Inquiry: Obviously the silver commander was able to escalate things to you as the gold commander as that was thought necessary?

Mr Alan Todd: That is correct.

Counsel Inquiry: On 23 April 2020 it became part of the role of the silver commander to effectively pre-authorise any issuing of a fixed penalty notice; is that correct?

Mr Alan Todd: That’s correct.

Counsel Inquiry: I’m going to come back to the reason why that was deemed necessary, at the moment I’m just dealing with structures but, again, below silver there were a number of bronze commanders; is that right?

Mr Alan Todd: Yes.

Counsel Inquiry: They fed into the structure, one of the bronze commanders was responsible for, I think the words were translating the regulations into operational instructions and guidance for officers?

Mr Alan Todd: That’s correct.

Counsel Inquiry: How easy a role was that bronze commander – did that bronze commander find translating those regulations into operational instructions and guidance?

Mr Alan Todd: It was extremely difficult.

Counsel Inquiry: I’ll come to some of the specifics in due course but you say that the PSNI held a pandemic planning meeting on 3 February 2020. What caused the PSNI to hold its first meeting on that date?

Mr Alan Todd: 3 February 2020 pre-dates my tenure as a gold commander, I took over slightly later than that, but it is fair to say we had been involved in a number of meetings through NPCC and others, and we were tracking how this was developing, and there were update meetings held at various times. I know other witnesses have talked about Operation Yellowhammer and the work that was going on around Brexit planning, and a lot of that work had sat in that space, but we were starting to sort of ask ourselves questions about how it might look going forward, so the early meetings in early February would have reflected that.

I don’t want to underestimate – I don’t want to overstate it or understate it but we certainly had a curiosity as to what the future looked like.

Counsel Inquiry: Can I just jump in there. Were these meetings driven by the PSNI or were they driven by NPCC engaging with you?

Mr Alan Todd: I don’t recall the specifics of the 3 February meeting, I’m sorry I can’t assist you with that.

Counsel Inquiry: But generally in those early stages, even if it’s not necessarily 3 February –

Mr Alan Todd: Sure.

Counsel Inquiry: – are you able to remember whether this was an internal PSNI concern to the situation that was presenting itself in Northern Ireland in February 2020 or was this your national engagement was making PSNI believe this is something we are going to need to deal with?

Mr Alan Todd: I think, to be fair, on balance, my Lady, that was largely driven by what we were hearing from NPCC and national structures and that was the impetus behind that.

Counsel Inquiry: Because you say that you appointed a tactical adviser who had worked on the PSNI’s influenza pandemic planning?

Mr Alan Todd: That’s correct.

Counsel Inquiry: What message, as far as you can remember, was that individual getting from those contacts he’d worked with as part of his pandemic planning and when I say those individuals, those who were within the government of Northern Ireland?

Mr Alan Todd: I think, I think we had lots – I don’t know that there were many clear messages, I think there were lots of questions, and I think people were curious about the way it was developing, I think there were conversations that – we had had issues around SARS back in 2011, 2012, there were issues around avian flu, some that had a similar run-in but had never really become the big issue that they might –

Counsel Inquiry: Were these questions from the PSNI or were they questions being posed to the PSNI?

Mr Alan Todd: No, these were questions that we were raising in our own mind about, you know, frankly where’s this going.

Counsel Inquiry: And were you getting any answers from the government?

Mr Alan Todd: We were getting – we were getting updates and the briefings that everyone else was getting but there wasn’t a clarity in that and there was certainly no taskings or askings coming to the police service as a result.

Counsel Inquiry: Do you think that that impeded the ability of the PSNI to respond to the pandemic in the early stages?

Mr Alan Todd: It’s always better to have more time to plan, but I wouldn’t be overly critical. I mean, you know, looking back, as late as late February, I was chairing a gold meeting in relation to the up and coming St Patrick’s Day celebrations and it really hadn’t occurred to anybody that it wouldn’t be going ahead on 17 March, and I think that maybe captures the mindset, my Lady. You know, it’s – however we ended up there, I wouldn’t have been holding a gold meeting about St Patrick’s Day parades and celebrations on 21/22 February 2020 in anticipation of being locked down a short number of weeks later.

Counsel Inquiry: How does that quite square, that you felt it necessary in early February to have the initial meetings, you got the engagement of the NPCC, and England was ahead of Northern Ireland in terms of the development of the pandemic, how was it not occurring to people in late February, when you’re planning for the St Patrick’s Day parade, that actually there might be an issue about how that was going to be policed and also whether there was going to be any issues from the pandemic arising?

Mr Alan Todd: I can’t account for that. I mean, we were getting briefings about how things were developing, what they might be, but people were still very much talking about containment phases not only in Northern Ireland but further afield, and I don’t believe at that point people thought we would just – so much would happen so quickly.

Counsel Inquiry: You mentioned earlier on about the history of the PSNI. In those initial stages, so late March and earlier, were there any particular policing sensitivities that are unique to Northern Ireland or which are more prevalent in Northern Ireland than they might be in the rest of the United Kingdom, that had any relevance or impact upon how the PSNI planned to respond to the pandemic?

Mr Alan Todd: I think there are lots of sensitivities for policing –

Lady Hallett: I was going to say: how much time do you have?

Mr Alan Todd: That’s right.

Lady Hallett: Listing sensitivities or policing sensitivities.

Mr Alan Todd: But I would say this, my Lady – and I know time is pressing – I think Martin Hewitt, the chair of the NPCC, very articulately outlined the sensitivities for policing a pandemic in the UK, and we share that, and the NPCC’s position on that is our position on it.

It will not have been lost on my Lady, and other people in the room, the sensitivities and the politics and how quickly issues in Northern Ireland become party political issues. That means they are in the public space, it means they’re on radio shows and it means that they are reflected in various members of our Policing Board, who would have different views on different subjects, and therefore very quickly that political interest becomes input for policing in its considerations.

So that sensitivity is as per the rest of the UK, but I think in a small place like this, and other witnesses have talked about how close politics are to communities, and how close policing can be, it’s – it would be – I think it would be understood in the room that there are sensitivities in Northern Ireland that perhaps are more sharply defined on top of what the rest of the UK also experienced.

Mr Scott: If I can have on the screen, please, INQ000291261.

So this is a note of a meeting – it’s not the PSNI’s note, but it’s a note of the meeting of 20 March 2020, so this is prior to lockdown but after the NICCMA arrangements had been stood up, and this is a note of the meeting between the First Minister, deputy First Minister, Chief Constable and the Deputy Chief Constable.

You can see the points that are discussed there about – observations about command and control, about getting good issues, and then, at the bottom, importance of personal resilience.

It doesn’t seem from that meeting, again I appreciate this is Chief Constable to the First Minister and deputy First Minister, it doesn’t seem like there’s great clarity about the precise role that the PSNI was going to play in the response to the pandemic as of 20 March. Do you agree with that?

Mr Alan Todd: Yes.

Counsel Inquiry: In terms of your understanding of the role that the PSNI was going to play as of 20 March, do you think that there was sufficient clarity at that time?

Mr Alan Todd: No.

Counsel Inquiry: And why was that?

Mr Alan Todd: I think – I think a range of agencies were playing a significant amount of catch-up. And I don’t pretend to be any different than anybody else. I think the implications for policing started to crystallise for me when I saw the Italian police patrolling the streets of Italian towns, not long before the meeting, it had just been on – you know, so that was 9, 10, 11 of April, and you had Italian police patrolling Italian towns, getting people to stay in their homes, and it was at that point I thought, you know –

Lady Hallett: April or March?

Mr Alan Todd: March, I beg your pardon, in the Italian lockdown. And I suppose it was at that point that it started to crystallise in my mind what sort of ask might be coming. But I also tempered that with the Italian police and the Italian system’s different to ours and that the ask here might be different, differently done.

But still at that point, and I think some of the frustration that the Chief Constable had, and as illustrated by the report, was we were starting to have meetings on a number of fronts with a number of groups and there was lots of information sharing and there’s lots of discussion but there was no ask of policing or framework arising as to what the ask might look like.

Mr Scott: So was there no planning realistically?

Mr Alan Todd: Realistically, not.

Counsel Inquiry: Because you said about 9, 10, 11 March. I mean, you set the gold objectives on 9 March.

Mr Alan Todd: Yes.

Counsel Inquiry: You had your first gold command meeting on 12 March.

Mr Alan Todd: And that was the date on which I was appointed.

Counsel Inquiry: Yes. Is it fair to say that effectively your concerns around that 9, 10, 11, 12, March led to the initiation of the gold structure?

Mr Alan Todd: Well, the Chief Constable appointed me as the gold commander. It was a change because we – hitherto, my Lady, we had – I think for good reason, the – another one of my Assistant Chief Constable colleagues had been working on the Brexit planning through Operation Yellowhammer, the structures and relationships were being developed that way –

Counsel Inquiry: Excuse me, Mr Todd, is there any chance you could slow down, again, please.

Mr Alan Todd: Sorry, I beg your pardon.

I think at that point my colleague was seen as a – the right conduit, with the relationships and the structures that this would sort of move from one plan into another. But as we started to see the potential for the operational ask starting to arise, with the experience in continental Europe, it was felt that it would have a much more day-to-day operational focus required, and to split that away from myself, who was in charge of local policing, I think the Chief Constable took the view that that wasn’t a good structure, and therefore appointed me as the gold commander.

Counsel Inquiry: So as of 23 March, when the country went into lockdown, again, do you think that the structures were in place to enable a proper and effective response in Northern Ireland, from your perspective as a police officer?

Mr Alan Todd: I think from a policing perspective as – one thing policing tends to be very good at, my Lady, is doing lots of things quickly and putting their best foot forward, but it wasn’t an ideal situation.

Counsel Inquiry: But in terms of doing things quickly and putting your best foot forward, that’s exactly what you need at a time when you’re trying to respond –

Mr Alan Todd: And that’s exactly what we did. And in fairness to the men and women under my command, everybody put their best effort – and actually, you know, the amount of distance the organisation travelled in a very short time, we never missed an emergency call, we never missed a call for service, at any point throughout the pandemic, as well as all the other stuff we delivered on top, and I think that’s a credit to the men and women of the police service.

Counsel Inquiry: Do you think the other limbs of the Northern Ireland Government progressed as quickly or were as ready as you were?

Mr Alan Todd: I think different limbs of government were in different places at different times.

Counsel Inquiry: So by the time of 23 March, do you, again from your perspective, consider that there was sufficient level of readiness to respond?

Mr Alan Todd: No, I don’t.

Counsel Inquiry: In what way was it deficient?

Mr Alan Todd: From a policing and operational perspective, as an example, the date of lockdown was announced at really short notice. And whilst the concept was announced, the regulations that would shape it weren’t available.

We’ve talked about, my Lady, the three Es and the four Es, but the simple truth is that for the first three weeks of the first lockdown there was no fourth E. And this is just a preparedness issue, for no reason other than that’s the way it was.

Fixed penalty notices, the only agency in Northern Ireland who has a contract to have them printed was the police service. The – they’re printed in Wales, and the lead time for introduction of – that was three weeks. You couldn’t physically get fixed penalty notices, which was the principal enforcement limb, physically couldn’t put them in place for three weeks.

Counsel Inquiry: Yes, that’s a practical issue, but isn’t there also a principled issue, that you can’t enforce what you don’t have?

Mr Alan Todd: Well, that’s correct. So, you know, at the very early stages regulations were provided at very short notice. They came without guidance, they were secondary legislation to primary legislation. They were regulations, there were no powers of arrest. There had seemed to be little consideration given to giving police officers powers to ask members of the public questions about why they’re out of their home, where they were going to work. You can ask, but there’s no authority to do so if people were difficult or wanted to game the system.

There was no guidance which would have shown due regard to European Convention considerations. There was no guidance to point the police in terms of section 75 Northern Ireland Act considerations. That was all – that was all sitting – none of that was available at the time that lockdown went live. And that places the police in a difficult position, where your natural and professional inclination is for the service to do the maximum amount it can to assist the health service and protect people’s lives, understanding that the foundations on which you’re being asked to do some of this work, in our normal understanding of the law, were not in place as they might otherwise have been.

Counsel Inquiry: Whose obligation do you consider it was to make sure that was in place?

Mr Alan Todd: It’s a collective of government, but at the end of the day I take the view – others may argue, but I took the view that a pandemic was a particular set of circumstances, not normal policing circumstances. This was a health crisis. We were being asked to take steps to protect the health service and to protect the community’s health, and the responsibility for shaping what that looked like by way of guidance and/or regulations or law was a matter for the directing body, which would have been, in my view, the Department of Health and/or the Executive, depending on which way government decided to split that responsibility.

Counsel Inquiry: It might be thought that when regulations are brought in, in order to respond to a public health crisis, that those initial stages are when it’s almost most important to have clear and effective understanding about how those regulations are going to be applied and potentially enforced; would you agree with that?

Mr Alan Todd: Yes.

Counsel Inquiry: In those initial stages, when they were brought in on 28 March, did the PSNI, putting it simply, understand what they were being asked to do by those regulations?

Mr Alan Todd: I think we understood the framework, we understood the concept of a lockdown, and we understood how policing could assist in that space.

Did we understand the detail? It wasn’t provided. Did we understand the guidance that we should rely upon in operating it? It wasn’t available.

And actually there was a reluctance to provide that. It was not – it did not come in a short timeframe after that. We had to push very hard to get that, and you will see that reflected in correspondence from the Chief Constable to the health minister.

Counsel Inquiry: Yes, that correspondence was 17 April. Are you suggesting that, let’s put it a different way, even by 17 April you didn’t have the tools that you needed to properly police those regulations?

Mr Alan Todd: Well, I drafted – I drafted some of that correspondence for the Chief Constable in relation to what I felt, again it’s my professional view, what I felt was a lack of progress on what I considered to be important issues.

Counsel Inquiry: Can we see that letter. That’s INQ000272745. Thank you.

This is a relatively lengthy letter, I think it’s four pages, something along those lines.

Mr Alan Todd: Yes.

Counsel Inquiry: What had it taken – let me ask that a slightly different way.

It was a slightly surprising step, would you agree, for a Chief Constable to need to write to the health minister to say, effectively: we’re not being given what we need to enforce these regulations.

Do you agree with that?

Mr Alan Todd: I think it’s a significant step. We’re a very busy organisation and, you know, it was after a conversation between I and the Chief Constable at the time, deciding the best way to try to approach this.

Counsel Inquiry: Was this the culmination of a number of, let’s say, lower level efforts, maybe engaging with departments, dealing at a slightly lower level rather than Chief Constable to minister?

Mr Alan Todd: Yes, it was. And I don’t attach any personal blame to any of those parties, my Lady. It was quite clear that Department of Health lawyers were under-resourced, badly stretched, and were doing the best that they could. I was acutely aware that what I was asking was a further imposition upon that, and, you know, in its own way it was a way of raising it at what we believed to be an appropriate strategic level.

It is also worth saying that it is in response to a feeling, a concern that I had and the Chief Constable had, that the police service were becoming the first point of contact and the lightning rod, for want of a better phrase, in everything that people wanted to know or were unhappy about the regulations. The number of media interviews I was being asked to do to explain regulations that I didn’t write, and outline guidance which I wasn’t given, we felt was becoming an increasing risk for us as a police service and was symptomatic of the conversation we had earlier.

Counsel Inquiry: If I can just pause you there, if we can just scroll down in this letter, please, and we can see that, at 1, there is a request for a formal commissioning arrangement. But if we – apologies, I’m just trying to find one section there where I believe the Chief Constable talks about this being a … there, just above paragraph 3 there, exchanges with Solace:

“… I appreciate that this is being kept under review, the risk of policing fulfilling responsibilities outside our ‘traditional’ role have medium term consequences for public confidence.”

When you were saying that you were becoming a lightning rod, do you think that there were concerns amongst yourself and/or the Chief Constable about the general confidence of the population of Northern Ireland in the PSNI at that time?

Mr Alan Todd: I think it’s fair to say that we had concerns that if we didn’t take action that that was a potential consequence for us.

Counsel Inquiry: Do you think that this letter effectively headed off those concerns or did it not?

Mr Alan Todd: I think it helped progress matters, but – and this is why, again, I’m reluctant – I’m genuinely not, we had a very healthy working relationship with the Department of Health staff and, you know, on a personal basis I felt tremendously supported from the Chief Medical Officer and I hope he felt likewise in the work that we were able to do in support of the overall effort. But the nature of regulations changing so quickly and always being – we sort of never really felt that we were get – you know, regulations would change very quickly, sometimes what was trailed wasn’t what was published, it was – it wasn’t just that the regulations came out, that we had some concerns, that they were addressed and everything was fine. Because it wasn’t. It was more iterative or cyclical, the problems arose every time we went round the circle, and that was pressure of time, pressure of politics, pressure of changing circumstances.

Counsel Inquiry: Well, let’s look at this from a slightly different perspective, one of the essential elements of the Inquiry is to make recommendations about how systems can manufacture – or can work better in the future in the event of another pandemic.

Given what you’re saying about the circumstances that have led you to this point, what recommendations would you think that my Lady should consider about how the relationship between the police, government departments in Northern Ireland, regulations, what recommendations would you consider should be thought of?

Mr Alan Todd: Erm –

Counsel Inquiry: I don’t mean to put you on the spot in that.

Mr Alan Todd: And yet …

My Lady, policing likes to operate on the basis of no surprises. We like to deal with our community on the basis of no surprises, we find that people respond to policing best when there’s time to explain, understand, move forward together. Unfortunately the pandemic was full of surprises and that to some degree points to a lack of preparedness and lack of planning. Yes, there was a flu pandemic plan, but actually when you looked at it, it was not – it wasn’t helpful, actually, in terms of its applicability to the Covid pandemic.

I sat for a number of years as an Assistant Chief Constable on various contingency planning structures across government, and whilst a pandemic may have been the UK’s number one critical incident risk, I never heard it mentioned. Certainly the here and now of critical incident planning in Northern Ireland tended to be around weather emergencies, flooding, heavy snowfall, and climate change related – because that was happening regularly and we were being called to action on that regularly.

So to arrive at a pandemic facing a very short number of days, actually, never mind weeks, with no framework, of no concept of what a lockdown would look like, of who would be responsible for what, of who would co-ordinate that, you know, policing were invited under some of the civil contingency arrangements to take up the chair of the strategic co-ordinating group, because it was seen to be related to a pandemic which was seen to be related to a mass casualty event, and I said, I’m sorry but I don’t know what police would be co-ordinating here. It’s not a multiple accident on a motorway with mass casualties, or something of that ilk, or an Arena disaster or a terrorist attack, which is the tradition fare for contingency planning. We just hadn’t entered this space and therefore we were in the world of surprises and that’s difficult for policing in communities.

Counsel Inquiry: Because the police – you can’t police your way out of a pandemic.

Mr Alan Todd: Absolutely not.

Counsel Inquiry: So you needed, effectively, the other parts of the cross-governmental response to be doing their job to enable you to do yours?

Mr Alan Todd: But even, and some of your paper reflects, trying to get others to play a space in the enforcement space and, you know, local councils, Trading Standards, you know, people were actively suggesting that health and safety workplace arrangements would be inspected by the police service, because we – in the initial regulations, we were the only body designated under the regulations and from day 1 I was saying: this is on top of police service we provide and if you’re going to be effective at enforcement, and people talk about enforcement –

Counsel Inquiry: Can I just, you’re a fraction ahead of me here, Mr Todd.

Mr Alan Todd: Sure.

Counsel Inquiry: I am going to come back to the other bodies in enforcement.

Mr Alan Todd: It illustrates the point, that thinking, it was very much set on the police’s table and, you know, because we’re a can-do organisation and these were important times where people were dying, we did our best, but there were some things that made that harder than it should have been.

Counsel Inquiry: Because, again, coming back to the letter that is still on the screen from the Chief Constable, again this is dated 17 February, we can see in the top paragraph that this is about an operational commission, against which the parameters of policing response can be tested provide the necessary legitimacy to what we are being asked to achieve. And then, the next paragraph down, there’s talk about consideration to designating other public officials as enforcement bodies. Again, at the bottom in terms of paragraph 3 you can see there there’s, the third line up from the bottom, there’s talk about risks further confusing public understanding of how the regulations are being enforced.

Effectively the PSNI were flagging up, even by 17 April, all the concerns which realistically perpetuated throughout the lifetime of the pandemic; is that right?

Mr Alan Todd: That’s correct.

Counsel Inquiry: If we can just look at the response from the Department of Health, and this is at INQ000303261, and we can see that’s dated 21 April 2020, I presume you’re very familiar with the contents of this letter?

Mr Alan Todd: I am.

Counsel Inquiry: Do you consider that this response actually addressed the concerns that the PSNI were raising in that previous letter?

Mr Alan Todd: No, I don’t.

Counsel Inquiry: Why not?

Mr Alan Todd: I think it acknowledges the problems but it doesn’t provide the solutions which we were trying to outline.

Counsel Inquiry: If we can go over the page to page 2, please, and it’s the large paragraph in the middle where there is talk about:

“I note your request that a formal commissioning arrangement be established.”

What benefit would a commissioning arrangement have given the PSNI by the middle of April?

Mr Alan Todd: I think there was an emerging narrative. I mean, I don’t think we should expect significant people, a number of people in the population to welcome lockdown as a concept or regulations, and it seemed to policing, and others across government, that from the first days of lockdown and restrictions that people sought to game – my phrase – to find a way round the restrictions and find a way round the regulations. And it was a police perspective on that that a lot of the queries that arose about what was or wasn’t permissible was for the police to decide, and I fundamentally – I’d fundamentally disagreed with that. I thought it was for Health to decide what they did or didn’t want to happen across communities to protect their health service and protect the lives of the people they were treating and that we would operationalise that for them, as –

Counsel Inquiry: Can I ask you to slow down again.

Mr Alan Todd: I took the view then, as I take the view now, that the Executive and/or the Health Department, whoever takes the view on that, that they are making a collective decision on what they want to happen in terms of managing the pandemic, and the tasking to policing is to operationalise that, and I think for relationships with communities and answering for the outworking of that, whilst there’s an operational independence, about how we do it, the what and the regulations, you know, it shouldn’t be for the Assistant Chief Constable to be writing operational guidance to try and guide people to give us back the guidance that we think will work.

You know, that commissioning for me was, if you look at a tasking four-nation structure, who has the strategic intent, who has the strategic objectives, and who has the data to drive that? The police service weren’t any of those three people and therefore the people in that position, be that the Department of Health or the Executive Office or a partnership in there, should be collectively taking a view on what they want happening on the streets, roads and byways of Northern Ireland and the borders, and anywhere else, and then saying to the police, here is what we need from you and here’s the regulations and guidance to support you. And I don’t think we ever got there.

Counsel Inquiry: Do you think that would also have helped public confidence for that to have been in place?

Mr Alan Todd: I think it would have made – I think it would have made for a better no surprises approach because it leaves the police, in the absence of those things, it leaves the police service open to the allegations that we were being heavy-handed or acting beyond our remit, in a novel and contentious space and none of those things are good for public confidence in policing.

Counsel Inquiry: Did you ever get what you considered – did you ever get a commissioning arrangement?

Mr Alan Todd: The closest we came to a commissioning arrangement, my Lady, were when we considered local restrictions. You could see –

Counsel Inquiry: That was in September?

Mr Alan Todd: Yeah, you could see some of that thinking in the run-in to the second wave and the second batch of restrictions, you could see that thinking arising. But no, we never got to a formal commissioning arrangement, would be the full answer.

Counsel Inquiry: And did that have a negative impact upon the PSNI’s ability to police the pandemic and/or the public confidence?

Mr Alan Todd: I’m reluctant to say it inhibited our ability to respond. It made the consequences more difficult to deal with. You were doing more explaining than might otherwise have to be the case, and, you know, again it was largely left in the police’s space to explain that, and we just – it would be my view then and my colleagues’, as it is now, I think that was unfortunate.

Counsel Inquiry: Coming back to other bodies enforcing, if we can have, please, INQ000390980, and it will be page 19. This is a briefing provided by the health minister to his Executive colleagues dated 14 May 2020, and you can see the heading is “Under consideration about proposal to designate district councils as enforcement bodies”, and we can see at the top there that even by 14 May it was the PSNI and the Harbour Police who were enforcing the restrictions. I don’t want to be unfair, you probably weren’t getting a huge amount of support from the Harbour Police in enforcing restrictions?

Mr Alan Todd: Harbour Police is a small organisation, with a very small geographical remit, so in the scheme of Northern Ireland, no disrespect to the Harbour Police, no, my Lady.

Counsel Inquiry: So in comparison, in England, Scotland and Wales, as paragraph 2 says, the local authorities had been designated for enforcement of certain parts of the regulations.

Were you looking for other bodies – firstly, you were looking for other bodies to be able to provide enforcement; is that right?

Mr Alan Todd: I think, trying to take a strategic view on it, my Lady, looking forward it was clear that, you know, even by that stage, that restrictions would relax but they would stay in some shape, size or form. It was also clear that those restrictions may need to be flexed over time and some issues would be revisited over time, and it was not – whilst this was a starting point I took the view – forgive me for a slightly long answer to this.

In the early part of lockdown 1 the police were in a fortunate position, day-to-day demand – the evening economy didn’t require policing, because there wasn’t one, road traffic almost disappeared, and thankfully, mercifully, the high 40% working assumption absence rates in policing weren’t realised. So we had a significant amount of operational capability, which I was able to deploy in support of the health protection regulations enforcement.

But looking forward, as we knew shops would re-open, the evening economy would re-open, more people would go back to work, more of the normal policing demand would increase. And therefore, over time, the only way of effectively managing restrictions was to have the widest possible involvement of partners. And I would have been working with major retailers about how they would effectively small p police supermarkets with local councils, with Trading Standards, with business owners, because in my view it was foreseeable over time that the only way of getting that wider effort in support of those regulations wasn’t for police to step back, we just continued – there was going to be more demand at a time when we had less supply, and therefore the bigger partnership was the more likely successful approach.

Counsel Inquiry: If we could just scroll down to paragraphs 5 and 6, please, and we can see there paragraph 5, I think that effectively encapsulates what you were just saying there, that as things begin to re-open it’s going to become harder to enforce?

Mr Alan Todd: Indeed.

Counsel Inquiry: And we can see at paragraph 6 there:

“The Health and Safety Executive position is that there is no need to designate HSENI to enforce the restriction regulations …”

Did you get a sense from other bodies, in the broader sense, who have enforcement powers, that there was any willingness from those bodies to actually play any enforcement role throughout the pandemic?

Mr Alan Todd: I think there was a limited willingness. I think they saw that was them putting themselves and their staff into potentially confrontational situations, which they didn’t feel equipped to deal with.

And I understand that concern, my Lady, but I was flagging to government that nevertheless, you know, the – we either widened our capability across agencies or we were going to end up with a gap because policing couldn’t fill it all.

And, you know, I think this was true of things like public transport and all of those things, there were lots of debates about why public transport could police tickets but not facemasks. All those sorts of things were being debated behind the scenes. Policing just felt that there wasn’t a long queue of people queueing up to help in that wider effort, my Lady.

Counsel Inquiry: Thank you, so were there learnings from wave 1 through into wave 2 about how you policed the pandemic?

Mr Alan Todd: I think – yes, in terms of preparedness and that no surprises, but it was – it was cyclical because when – when those second batch of restrictions in the second wave came into effect, the regulations were very different, there were lots more exemptions. And the more exemptions you have in those types of restrictions, the more likely people are to exploit it round the edges –

Counsel Inquiry: Are they also less likely to be able to understand what they can and cannot do?

Mr Alan Todd: I think it’s – they’re less likely to – yes, I think there are people who are less likely to understand it and I think there are people who are more likely to use that confusion to circumvent the regulations, I think that’s true.

Counsel Inquiry: Was it also the fact that you were moving from a spring/summer into an autumn/winter setting; did that change how you were able to police the restrictions that had been brought in?

Mr Alan Todd: I don’t think it was – I think the risks increased because of people moving from the outdoors to the indoors. Policing of it, I think the nature of the regulations changed, therefore the nature of the policing changed. But the bigger aspect for policing was as business and economies opened up so did the demand for policing, to do non-pandemic policing, and we started to be stretched in some places.

Counsel Inquiry: The Inquiry has seen throughout autumn a number of documents coming from the CMO, the CSA, people have been talking about particular areas of concern, whether it be house parties or amongst different age groups. Were you being told by the Department of Health or anybody else where any particular areas of concern were as the pandemic progressed? Because would that have helped you to then target your response?

Mr Alan Todd: We had access to the Department of Health dashboards. I had regular briefings from the Chief Medical Officer and the Chief Scientific Adviser, and my people did from public health officials as well. So we had information about what the issues were, and we knew those issues, and house parties did feature, and it was a particular point – it was a particular point of effort on behalf of the police service, my Lady.

From recollection I briefed – I mean, you mentioned the Northern Ireland Policing Board are part of my accountability – or were part of my accountability arrangements, and I briefed the Policing Board as to achieve action around coronavirus regulations, and I pointed out – so the figures even in September of 2020, coming through the summer, we had issued over – heading towards 500 fines for people in house parties, we had issued somewhere above 60 prohibition notices on individual private premises, we had visited more than a thousand – done more than a thousand pub inspections as the licensed trade re-opened, and issued prohibition notices in relation to over 60 pubs and closing them down whilst they resolved the issues they needed to resolve, and as well as thousands of visits supporting the retail sector with their work as well.

So, you know, I was regularly reporting the enforcement efforts of policing through the accountability body that was the Policing Board, and indeed other interested parties, and we were aligning that on a daily basis.

You know, it wasn’t touched on but part of our silver structure, my Lady, we had a 24-hour command room running throughout the pandemic, and day by day by 24-hour period I knew, as the gold commander, where we had been and how many of each of the four Es we had used over time. That data has been made available to the Inquiry. It was substantial. More than substantial. A huge amount of work put in.

And contrary to some evidence, you know, I was pushing the Executive in debates around this, about the appropriateness of £60 fines, which were £30 if you paid them soon, which I pointed out to Executive policymaking colleagues is less than you would get for dropping litter in Belfast city centre, and whether that demonstrated the seriousness with which we took a breach of the coronavirus regulations.

And, you know, anecdotes make wonderful telling but, you know, police officers attended a house party in a rural community at around this time, it was a 21st birthday party, there were 30-plus people, blatant breach of the regulations, and the householder decided they were quite happy to pay the £1,000 fine as the householder, and £60 – £30 for each of the attendees as a price for having the party. And I don’t – that, you know, that …

And that point of issuing those fines, the police had no further powers in relation to it and no further deterrent in relation to it. And I don’t think that sort of event, which obviously becomes public knowledge, helps a police service or a government manage a health pandemic.

Counsel Inquiry: I just want to deal with two further topics and that’s in relation to policing large-scale events.

Now, Mr Todd, it’s been – throughout Module 2C, it’s not been the intention to look at the rights and wrongs of what happened on the day of Bobby Storey’s funeral, but it is about looking at the impact of that event. What is your view on the impact upon compliance with the regulations of the Bobby Storey funeral?

Mr Alan Todd: I know you haven’t sought to draw me, my Lady, but I think it’s important, if not on a personal basis, but on behalf of policing and the men and women who police Northern Ireland.

What happened on the day of Bobby Storey’s funeral was wrong. I said so at the time, I said so throughout the various investigations into it, and I said it every day since. I think the people who were involved in that have now come to that position –

Counsel Inquiry: Sorry, Mr Todd, again, if you could just slow your pace down, please.

Mr Alan Todd: I think people who had been involved in that have now come to that position, but that was the police position before, during and after. I think it was wrong, I don’t think it should’ve happened, for either the politicians or the people present. Neither do I believe that there was a policing solution to that.

Counsel Inquiry: Why was there no policing solution?

Mr Alan Todd: I don’t believe there was a policing solution and I don’t think any of the reports into it have identified one.

Lady Hallett: I think we may be straying off –

Mr Scott: I was about to –

Mr Alan Todd: No, well, let me take it –

Mr Scott: – just phrase it slightly differently –

Mr Alan Todd: Let me take it in a more thematic space for you, Chair, if that helps.

Lady Hallett: It’s just that I can’t investigate whether or not the police should have done more –

Mr Alan Todd: Sure, indeed.

Lady Hallett: That is not part of my job. I think – can we go back to Mr Scott’s question.

Mr Scott: Yes.

Mr Alan Todd: But I think –

Mr Scott: Mr Todd, I may be able to help you, just in terms of the question I am seeking to ask.

Does there become, effectively, a critical mass of people, when you have a large gathering, beyond which it effectively becomes almost impossible for you to provide a policing response – whatever the setting?

Mr Alan Todd: Theoretically. I think the bigger issue in relation to this, and I’m going back to the previous conversation, was, when you’re relying on secondary legislation, low-level – in legal terms, low-level regulations, that the top of their fining scale is a fixed penalty notice, where there are no powers of arrest and no powers of physical restriction, which don’t come with guidance which is based on the European Convention on Human Rights, and the right to protest and all the rights of private life, and all those other rights that we enshrine in our decision-making, when that is absent from the regulations handed to the police service, the police service can step in and make decisions but it’s not, it’s not a good space to be in, and the notion that you would start to deploy large numbers of police with the potential for disorder and the requirement to exercise the use of force just becomes untenable, untenable generally and particularly untenable when the human rights considerations of that and the guidance hasn’t been issued as part of the regulations, my Lady.

Lady Hallett: I think we are going down whether the police – and that’s not part of my remit.

Mr Scott: Absolutely, my Lady.

Lady Hallett: Can we go back to the question that Mr Scott asked about the Storey funeral, Mr Todd, the impact on compliance.

Mr Alan Todd: The police service took a lot of criticism, it made life very difficult for my officers. I think – I didn’t see – I didn’t see any significant shift in the data, my Lady, it shifted the tone, and I think that emerging number of people who were seeking a reason not to comply or adhere to the regulations had their case strengthened.

Lady Hallett: So the criticism was of the police for not stepping in, and you’ve just given some of the reasons why they couldn’t, but that criticism led to people thinking: well, if the police don’t even do that, then …

Mr Alan Todd: I think the event undermined confidence in the very people who were making the regulations and that was never going to make it easier for the body charged with enforcing.

Mr Scott: If I can just move on finally to the issue of equalities. To what extent were the PSNI giving consideration to vulnerable groups about how they were involved in the coronavirus regulations?

Mr Alan Todd: I’ve already pointed out that I thought that section 75 screening and the outcomes of which, incorporating into guidance, were attached to the regulations is an omission. We sought as a service, I sought as a gold commander, to fill that gap in the operational guidance I gave to the officers, and specifically the operational guidance I gave to the 24-hour cell that controlled policing operations.

I think there are a number of documents that you will see that I have written to officers with letters that I had received from members of the public, maybe circumstances we hadn’t foreseen, but we used those case studies and we used those messages to encourage discretion, to recognise vulnerability, to acknowledge it, and to act – and exercise our professional discretion in relation to it, and I take the view that as a police service we had that at the forefront of our minds not only in a policy space but in a practice and operational space, and I think we were really strong in delivering against that, and I think it’s to the credit of the system we set up and the daily scrutiny we gave to the impacts of our enforcement and we – that methodology allowed us to make these considerations on a day-by-day basis across Northern Ireland with a view to fairness and equality and discretion and to make sure that what could otherwise be a blunt tool was used as professionally as possible in the circumstances, and I think the organisation deserves some credit for that.

Mr Scott: My Lady, I’ve no further questions.

Questions From the Chair

Lady Hallett: Can I go back, Mr Todd, to the regulations themselves. You may know that in Module 2 I asked Mr Hewitt about the regulations themselves. Now, I appreciate the pressure people were under drafting these regulations in very difficult circumstances, but I couldn’t understand them, and that has – there’s a number of problems with that.

So, basically, there’s a principle, as you’ll understand, of the criminal justice system that you shouldn’t have penal consequences unless the person who’s committing the offence understands it, it’s difficult for your officers to enforce, and as you said, I think the second lot of regulations, you said they had masses of exemptions which brings a lot of subjectivity into them.

Were your regulations here in Northern Ireland as bad as I think they were in England?

Mr Alan Todd: I wouldn’t argue with either your or Martin Hewitt’s assessment, my Lady. I think we had the additional factor that they were often amended but the amendments were rarely consolidated and therefore you were reading a new set of regulations, trying to remember what it said six regulations ago and two amendments in the middle. And you asked me the question earlier about the role of my bronze commander, the Chief Inspector, who dealt with that, it was a very, very difficult role.

Lady Hallett: How does the officer on the street deal with it?

Mr Alan Todd: Well, that was the challenge, that that officer on my behalf and the team on my behalf, it was one of the big parts of our job was taking that and condensing it into one or two pages of guidance, the Practical Peelers that we used, and condensing that into practical, usable advice and guidance and then supervising that through the 24-hour command and control system that we had. Again, I think that was successful but it was very, very difficult work.

Lady Hallett: Did you get more notice than Mr Hewitt said the National Police Chiefs’ Council got?

Mr Alan Todd: I didn’t, I don’t recall his part of that evidence.

Lady Hallett: Basically I think he said sometimes – Mr Phillips will confirm – he said that basically the regulations would change at a minute past midnight and they’d be told at five to midnight if they were lucky, sometimes afterwards. Mr Phillips, I think –

Mr Alan Todd: That did happen, my Lady, yes.

Lady Hallett: That did happen?

Mr Alan Todd: That did happen.

Lady Hallett: Right, thank you very much for your help, Mr Todd, I’m very grateful.

(The witness withdrew)

Lady Hallett: Right, 10 o’clock tomorrow?

Mr Scott: Yes, my Lady.

Lady Hallett: The final witness and then closing submissions. Thank you.

(4.32 pm)

(The hearing adjourned until 10 am on Thursday, 16 May 2024)