The administrative scheme for "on-the-runs" - Northern Ireland Affairs Contents


2  The administrative scheme

What was the scheme designed to do?

29. The administrative scheme to deal with OTRs arose out of what Sinn Féin saw as an anomaly left over from the Belfast Agreement. After the Agreement was signed, it became apparent that those who had voluntarily exiled themselves from the jurisdiction would not be covered by the terms of the early release scheme and would not be able to return to the UK without the risk of arrest.

30. The administrative scheme devised by the Government allowed those individuals on the run to ask, through lists of names mainly submitted to the NIO and No. 10 Downing Street by Sinn Féin, the Irish Government, and the NI Prison Service, whether they would be at risk of arrest should they return to the UK.

31. The scheme involved checks which, according to the Report of the Hallett Review, would, in general, be carried out in the following way:

    the NIO would forward the names, via the Attorney General's Office and the Public Prosecution Service for Northern Ireland, to the PSNI. A dedicated PSNI team conducted a review and submitted a report to the DPP(NI). The DPP(NI) and Attorney General then determined whether arrest/prosecution was justified. If the police/prosecutorial review concluded that an individual was 'not wanted', the NIO wrote to Sinn Féin enclosing a letter for onward transmission to the individual.[12]

Whilst this was the essence of the scheme, it is very important to emphasise at an early stage that the Royal Ulster Constabulary (RUC)/PSNI did not know the exact content of the letters being sent by the NIO throughout the operation of this scheme.

The type of people on the lists

32. The initial administrative scheme looked at the names on Sinn Féin lists 1 and 2, sent on 19 May 2000 and 30 March 2001 respectively. In his evidence to us, the Director of Public Prosecutions for Northern Ireland (DPP(NI)), Barra McGrory QC, who had previously been the solicitor who represented Sinn Féin and the OTRs during part of the administrative scheme, described the type of people whose names were on the lists as follows:

    Phase one, which was Sinn Féin list one—the list of 36 names—is difficult, because among those names were 17 escapees and quite a number of others who were unlawfully at large and wanted […] There were those who had not served two years who would have had some time to serve and then there were others who were not escapees but who had skipped bail or who were on the list as well.[13]

He continued by telling us that:

    I have no doubt that many people received letters saying that they were not wanted who, in ordinary circumstances, the police would have liked to speak to. That is not to say that people who received letters saying that they were not wanted would automatically or necessarily have been prosecuted. Those are two very different things.[14]

33. The then Assistant Chief Constable, now Deputy Chief Constable, of the PSNI, Drew Harris, made the following comments to the Committee on 7 May 2014, with regard to the type of people who were included on the Sinn Féin lists. He stated:

    When you look through the full 228 names, there are people in that who are, in your own terms, "notorious", without a doubt. 95 of these individuals are linked in some way or other to 200[15] murder investigations, but that linkage may only be in intelligence. All of that is now being assessed.[16]

We, therefore, have several areas of concern with regard to the types of people on the Sinn Féin lists.

34. We are particularly troubled about Barra McGrory's comments that "in ordinary circumstances, the police would have liked to speak to"[17] those people. The police would normally speak to someone who was a suspect, or potential suspect, but did not do so with OTRs. This meant that the police did not have the opportunity to arrest and charge those people as a result of that questioning. This strikes us as having potentially distorted the course of justice.

35. Finally, the fact that 95 recipients of the letters are potentially linked to 295 murders is undoubtedly significant, albeit through intelligence, and begs the question as to why these letters were issued if that was the case. We are left wondering whether any political pressure was applied to ensure letters were issued as expediently as possible.

Agreement of the schemes

36. The scheme was not subject to an overarching agreement with all of the political parties involved in the peace process. Key figures in the negotiations to the Belfast Agreement, such as Rt Hon David Trimble (now Lord Trimble), former leader of the Ulster Unionist Party, and Mark Durkan MP, former leader of the SDLP, were kept totally in the dark by HM Government about it. Former Secretary of State for Northern Ireland, Rt Hon John Reid (now Lord Reid) told us that, "what became known as the administrative scheme was not initially a scheme at all. It was meant to deal with a limited number of individuals, and it was only over time that it developed into the size that it has now."[18]

37. The scheme evolved piecemeal, as opposed to being something that was designed with the whole process and outcome in mind from the beginning. At the outset, it was not realised that there would be so many names appearing on the lists and it certainly was not considered that the scheme would continue for nearly 14 years.

Beginnings

38. The scheme started in 1998 by looking at whether the outstanding prosecution against one particular high profile individual, Rita O'Hare, could be stopped. Sinn Féin was extremely keen to see her able to return to the UK and participate in the peace process. It is believed that Ms O'Hare was seen as an important link between Sinn Féin and the United States.

39. This request was renewed in 1999, alongside two further names, which resulted in them being considered by the Attorney General and the DPP(NI) to assess whether they were able to return to the UK without fear of arrest.

40. Following a meeting on 4 November 1999 where Gerry Adams, leader of Sinn Féin, raised those 'on-the-run', and in particular Rita O'Hare, the then Prime Minister, Tony Blair, wrote to Mr Adams, on 5 November 1999, stating:

    In the case of [words redacted] and others who are subject to extradition warrants, I entirely take the point that some of these people are active advocates of the peace process. The question of whether to pursue prosecutions is a matter for the DPP(NI) and the Attorney General who, constitutionally, act independent of the Government. However, I understand that the Attorney General would wish to use the discretion he has to review, without commitment, whether the public interest continues to require a prosecution in these cases.[19]

In a further letter the next day, Tony Blair remarked that he hoped to have the review finished by Christmas. Given that the review of some names was still going on in 2012, this hope proved to be completely unrealistic.

41. It was still considered by the prosecution authorities that, in the case of Rita O'Hare, there was sufficient evidence to justify prosecution, and she was not allowed to return to the UK without risking being arrested. As a result of these deliberations, Sinn Féin put pressure on HM Government for movement on others living outside the UK who wanted to return. Because of this pressure, on 5 May 2000, Tony Blair wrote to Gerry Adams, stating:

    I can confirm that, if you can provide details of a number of cases involving people "on the run" we will arrange for them to be considered by the Attorney General, consulting with the Director of Public Prosecutions and the Police as appropriate, with a view to giving you a response within a month if at all possible.[20]

This resulted in the first list of 36 names being sent to Downing Street on 19 May 2000.

42. By this stage, the RUC (the predecessor of the PSNI), as well as the DPP(NI), the AGO, and the NIO were all involved in the scheme and a more formalised process was beginning to form. Moreover, by March 2002, the PSNI had drawn up detailed Terms of Reference. These are reproduced in the Report of the Hallett Review at Appendix 7.[21] These Terms of Reference included the requirement that the PSNI inform the DPP(NI) and the Crown Solicitor of whether a person is wanted by any other police service in the UK and by any other country outside the UK.

Who initially drove the process?

43. Sinn Féin raised the issue of OTRs repeatedly with HM Government and initially discussed it at a very high level in talks with Tony Blair and his Chief of Staff, Jonathan Powell. The initial scheme (as outlined above) was also discussed between Mr Bertie Ahern TD, the then Taoiseach, and Tony Blair. Jonathan Powell told us that he first heard about the OTR issue when it was raised by Sinn Féin in November 1999. He said:

    after the Winfield House meeting[…]is when Adams and McGuinness came with a list of things they wanted, including the solution to the problem of OTRs. We then started working on it at that stage […] the Irish Government, thereafter, did apply pressure on us, did try to persuade us this was the right way to move forward, yes.[22]

44. Further evidence of the high level nature of these talks can be seen from a letter the Prime Minister received from the Taoiseach, after a meeting in December 1999. In the letter, Mr Ahern pressed HM Government to drop prosecutions in relation to those who had been arrested or convicted of offences which would have been a "qualifying offence"[23] under the Belfast Agreement. His letter stated:

    there is a strong case for deciding that the relevant authorities will not proceed further now or during the continuation of the complete and unequivocal ceasefire, in regard to certain outstanding warrants or any proceedings that may be subsequently completed in all relevant jurisdictions in Ireland and in the United Kingdom. The warrants of proceeding related to persons who had they already been arrested for or convicted of the offices in question would have been qualifying prisoners for the purposes of the Good Friday Agreement.[24]

45. In the letter discussed in paragraph 40, Tony Blair promised that the Attorney General would review the list of OTRs and decide whether there was enough evidence to prosecute. However, Sinn Féin thought that they were getting something more. In a meeting between the then Secretary of State, Peter Mandelson (now Lord Mandelson), and Sinn Féin on 26 July, Gerry Kelly MLA stated that:

    Sinn Féin understood why, in his letter to Adams, the Prime Minister set out the formal technical position: when things got written down everyone covered themselves. But in private meetings, the understanding had been clear: the Prime Minister said that he would sort things out.[25]

46. The high-level nature of the talks was confirmed by Tony Blair when he appeared before us. He stated: "I was making a promise to deal with it [the issue of OTRs]. I was, at points, going for this scheme, that proposal, this legislation".[26] He was clearly pushing for a solution.

47. It is clear that Sinn Féin pushed for OTRs to be dealt with at the highest level, and that promises were made by the Prime Minister as a result of the pressure put upon HM Government by Sinn Féin. Over the years, Tony Blair put in much effort to ensure those promises were fulfilled, but did so without telling other Northern Ireland party leaders about the exact nature of the administrative scheme.

48. The role of the Irish Government also gives rise for concern, as the December 1999 letter highlighted that it was pushing for cases which had not even been tried in the United Kingdom courts to be completely dropped. It appears that the Irish Government was, in effect, trying to persuade HM Government to introduce an amnesty for republican terrorist suspects.

49. We would like to see HM Government state its policy on pursuing those who were still wanted at the end of the OTR scheme including Rita O'Hare.

Barriers

50. Sinn Féin did not ask directly for an amnesty. However, in a meeting on 2 May between Jonathan Powell, NIO representatives, Irish Officials and Sinn Féin, it was noted that "Sinn Féin want an undertaking that the general principle of not pursuing OTRs will be recognised by July."[27] When questioned on whether Sinn Féin had asked for an amnesty, Lord Mandelson said that:

    To all intents and purposes, yes. What they wanted was a solution for all the OTRs and not part of them and, secondly, they did not want a system created in which OTRs would effectively have to surrender themselves to whatever authority it was in Northern Ireland for however short a time.[28]

This clearly shows that, whilst not asking for an amnesty directly, this is effectively what Sinn Féin wanted.

51. It is clear from the Downey disclosure documents that the then Attorney General, Rt Hon Lord Williams of Mostyn QC, emphasised the legal process that should be followed for all OTR cases. In a letter to the then Secretary of State, Lord Mandelson, the Attorney General stated:

    I am seriously concerned that the exercise that is being undertaken has the capacity of severely undermining confidence in the criminal justice system in Northern Ireland at this most sensitive of times. Individual prosecution decisions have to be justifiable within the framework in which all prosecution decisions are reached and I am not persuaded that some unquantifiable benefit to the peace process can be a proper basis for a decision based on public interest.[29]

As a result of his letter, decisions on whether an OTR on the list was wanted were based on the evidential test and not the public interest test. For something to satisfy the evidential test, prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against a suspect. According to the Code for Crown Prosecutors, "it has never been the rule that a prosecution will automatically take place once the evidential stage is met. A prosecution will not usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those in favour."[30] In the case of OTRs the public interest test could have been based on the wider benefit to the peace process and, whilst this was considered, the then Attorney General rejected its use.

52. Jonathan Powell said that, due to these restrictions, the promises made to Sinn Féin, i.e. that they would sort the issue of OTRs out, were ultimately not fulfilled. He told us:

    The point is that we were trying to come up with a scheme that would solve the problem of those people who were wanted. […] We came up with many different schemes to try to solve it, but none of them worked. In the end, we failed to deliver on the promise that we made to resolve that problem.[31]

53. Tony Blair agreed with Jonathan Powell, stating that Sinn Féin wanted HM Government to deal with those who were wanted, not those who were not wanted. He told us, "All my focus was on whether it was possible to put together a proper scheme to deal with the problem in its entirety. In the end, we were never able to do that, and we therefore never actually had the deal".[32]

54. Without the restrictions placed upon the scheme by Lord Williams, that only the evidential, rather than the public interest test, would be considered,[33] it is possible that many more of those on the Sinn Féin lists may have been eligible for a letter stating they were not wanted. We welcome the fact that Lord Williams intervened in this way, and consider his behaviour was an example for others.

Did it go over and above the terms of the Belfast Agreement?

Dropping extradition cases

55. The dropping of extradition cases was one concession given to Sinn Féin as a result of the OTR discussions. In June 2000, shortly after the first Sinn Féin list was sent through, there was some discussion between the Secretary of State for Northern Ireland and the Attorney General with regard to the dropping of certain extradition cases. During the exchange it was recognised by the then Attorney General that the power lay with the Secretary of State to decide whether an extradition case should be dropped. In response to this suggestion, Lord Williams raised some concerns, and stated:

    Further a decision not to extradite leaves two issues unresolved. The first is whether any charge ought to be brought in relation to the escape. […] perhaps the more difficult problem is whether or not you decide to continue with an extradition, that does not affect the fact that a person concerned still has a prison sentence to serve. If the individual returns voluntarily to the UK, he will be arrested and taken to prison to complete the sentence […] I understand that a number of the seventeen were convicted for murder.[34]

On 21 August 2000, Lord Mandelson wrote to the then Attorney General, saying that he was going to drop the remaining extradition cases.

56. In a meeting in Castle Buildings in Belfast on 31 August 2000, it was noted that the people on the Sinn Féin lists would not be willing to present themselves to the authorities. The meeting note stated:

    Mr Kelly was adamant that such a scheme would not work and that no-one who had gone abroad to avoid arrest would willingly hand themselves in. He outlined the unreasonable action taken, he claimed, when escapees had been re-arrested in the past.[35]

57. Subsequently, in a meeting between the Secretary of State and the Attorney General on 11 September 2000, the Secretary of State addressed this point. He said:

    Sinn Féin were unhappy about his [Lord Mandelson's] proposed scheme as it meant individuals giving themselves up to authority and being released subject to constraints. However, nothing less than that would be acceptable to him.[36]

58. The scheme proposed by Lord Mandelson, in a statement on 29 September 2000[37] made it clear that when those 'on the run' returned to the UK, once extradition had been dropped, they would have to submit an application to the Sentence Review Commissioners. They were, therefore, no better off than those who had been released under the Sentences Act.

59. Even though the extradition cases were dropped, we have seen no evidence that those returning were compelled to present themselves to authorities upon their return to Northern Ireland. We believe that some were given a 'not wanted letter', in some cases the Royal Prerogative of Mercy (RPM) was used, and, in the cases of Maze escapees, where extradition was sought due to their escape, the public interest test was used to drop cases against them.

MAZE ESCAPEES

60. Cases against Maze escapees were dropped on the grounds that there was no longer a public interest in pursuing the cases against them. In this instance, Rt Hon Lord Goldsmith QC, who was then the Attorney General, was willing to consider those cases on public interest grounds, which was something Lord Williams was not willing to do. Barra McGrory, in his written evidence, set out the circumstances of how this came about, he stated that:

    The Attorney set out his own view that in these circumstances the public interest did not require prosecution and that this was his advice to the Director. On 8 January 2001 a decision for no prosecution in the Maze escape case was issued. This related to 12 suspects all of whom appeared on the Sinn Féin List. [...] In relation to the offence of escaping from lawful custody the Director indicated that without further police enquiries he was not able to conclude that the evidential test would not be met. […] [He] concluded that the public interest did not require prosecution. A further review meeting was held on 12 January 2001.[38]

This meant that the cases against the Maze escapees, for their escape from prison, were dropped on the grounds that even though the evidential threshold would be met, the Attorney General and the DPP(NI) agreed that there was no longer a public interest in pursuing a prosecution.

61. One of the most controversial issues within the Belfast Agreement was the early release of prisoners, but at least it was publicly disclosed in the Agreement which itself was endorsed by referendum and enshrined in statute. By contrast, the administrative scheme for OTRs, also a highly controversial scheme, remained largely invisible for some 14 years.

62. We believe the scheme was intended to go beyond the Belfast Agreement and the early release scheme, to cover further categories of republicans accused of serious terrorist acts. To this extent the public was deceived.

63. The dropping of extradition cases resulted in some suspected terrorists having the opportunity to return to the UK, without standing trial. The dropping of the cases against the Maze escapees, using a public interest argument, also goes beyond the terms of the Belfast Agreement. Those released under the Agreement had, at least, stood trial and been convicted for the crimes they committed, whereas the Maze escapees did not face further trial for the crime of escaping prison.

The involvement of politicians and civil servants in decision making

64. In the UK, the criminal justice system should operate independently of government. However, one of the most unusual and surprising features of the administrative scheme was the role played by, and between politicians, Officials and the prosecution authorities.

65. The roles that the various public bodies played within the administrative scheme was described differently by the Officials involved. Kevin McGinty, Director of Criminal Law and Deputy Head of the AGO, described the role of the prosecutorial authorities as follows:

    I am not saying it is unlegal or illegal. It was an unusual process that the prosecutor would not normally do. It was taking this step because of the unusual circumstances in Northern Ireland; the prosecutor and the police were being asked to do it by those involved in the negotiations in the peace process in Northern Ireland. It is a uniquely Northern Ireland issue.[39]

66. Officials in the NIO also had a key role to play in the scheme. Sir Bill Jeffrey, who was Political Director of the NIO from 1998 until 2002, described the NIO's role in the scheme as "highly unusual" but "justified". In evidence to us, he stated:

    It was, as other witnesses have said, a highly unusual arrangement, but it was one that seemed to me, at least, justified by the conditions in which Ministers were operating at the time and the efforts they were making to implement the agreement and advance the process.[40]

67. Sir Jonathan Philips, who was Director-General, Political, in the NIO from 2002, and Permanent Secretary from 2005 to 2010, told us that Officials during his time "were acting within the framework of the scheme as it had evolved since 2001."[41] This suggests to us that, reasonably early on in the scheme, there was at least a very loose framework in place for the role of NIO Officials.

68. Officials in the early days of the scheme were ultimately trying to implement in good faith what was desired by Ministers. Nevertheless, there has been some suggestion that the role of Officials and the NIO blurred the principle of the separation of powers, and the public expectation that the criminal justice system should operate separately from government.

69. Another surprising and worrying feature of the scheme was the degree of knowledge that different Secretaries of State had about it and its operation. For example, Lord Mandelson was closely involved in the scheme. He advocated for its use in individual cases, dropped extradition cases and also made use of the RPM. He was fully aware of the process from end-to-end.

70. Lord Mandelson's successor as Secretary of State for Northern Ireland, Lord Reid, was also fully aware of the processes involved in the scheme. He appears to have assumed that everyone else was too, although did not see the process as a fully-fledged scheme during his time at the NIO.

71. Subsequent Secretaries of State, however, knew much less about the scheme and its operation. Rt Hon Paul Murphy MP, who was Secretary of State for Northern Ireland between October 2002 and June 2005, succeeding Lord Reid, told us that:

    During my time after that, I cannot actually recall—but it does not mean to say I did not know—anything about the administrative scheme to which you were referring. I have had a look at the documents that have very kindly been sent to me and they may well have crossed my desk, but I do not see my name on any of them, in terms of being copied to me. […] I am not saying I did not know about it, but I cannot recall certainly it being an issue, in the way it developed into as the years went by. […] I do remember the issue of on­the­runs, but I want to distinguish between the two things completely. [42]

72. It is evident that Mr Murphy cannot recall anything about the administrative scheme, during his time as Secretary of State. We have no reason to disbelieve Paul Murphy's account of his time in the NIO and believe him to have been a very co-operative witness. Given his failure to remember much about the scheme, it could suggest that in this instance Officials continued with the scheme without the full authority of the Secretary of State. During his time, twelve letters were issued by Officials.

73. Thereafter, Rt Hon Peter Hain MP, who was Secretary of State for Northern Ireland between June 2005 and June 2007, was able to reveal far more about the details involved in the scheme. Indeed, during his time as Secretary of State, Operation Rapid (which we will discuss later) was established within the PSNI. Mr Hain told us:

    The administrative scheme processed people on behalf of whom Sinn Féin inquired as to their status, were they wanted or not, at the time of asking. […] In the case of those who were not wanted, the letters they received contained statements of fact, after careful checks by the police, the Attorney-General's office and Northern Ireland Office Officials. They were clear that, should further evidence come to light, these letters would no longer be valid.[43]

He also contributed by way of a witness statement[44] to the Downey trial, which clearly reflects his intimate knowledge of the scheme. In it he stated:

    The scheme addressed the position of individuals who through Sinn Féin put their names forward. To qualify for consideration the offences for which each individual who believed he or she might be suspected, or "wanted" (in some cases already convicted and having escaped from prison), should have been committed before the signing of the Good Friday Agreement in 1998 and have been connected with the conflict in Northern Ireland. […] Whilst the first cases pressed by Sinn Fain concerned those who lived and had family in the North of Ireland, the scheme extended to applicants in the Republic of Ireland who had no such relationships and to persons whose extradition had been actively sought from within other jurisdictions. The scheme was not limited to offences committed in the North of Ireland […] There were a number of exceptional features to the scheme. The first, of course required Sinn Féin being formally put on notice; individuals who otherwise might not know with any certainty that they could be subject to arrest were alerted. The second was that the scheme progressed in a non-public manner. Confidentiality was maintained for the individuals who submitted their names to the scheme; neither the names of the applicants nor the outcome of the applications were subjected to publicity. [45]

However, unlike some of his predecessors, such as Lord Mandelson and Lord Reid, he was not involved in any decision making, or advocating for individuals. He told us, "It would have been […] absolutely improper for me to have got involved in the assessment of who did or did not receive those letters."[46]

74. He also argued that he was not involved in the mechanics of the scheme and was not aware that the PSNI did not know about the letters, saying, "Frankly, I didn't realise that they didn't know. I didn't realise that. As I said, I was not involved in the mechanics of the scheme."[47]

75. The direct involvement of Secretaries of State for Northern Ireland, Officials in the political directorate in the NIO, and even No. 10 Officials, in the criminal justice process was recognised as being extraordinary by many witnesses. We understand that the circumstances after the Belfast Agreement were also extraordinary and given the lack of confidence Sinn Féin, at that point, had in the criminal justice system in NI, we recognise that an extraordinary process was required. However once Sinn Féin had signed up to support policing in NI this scheme should have reverted to more normal criminal justice processes. We also consider that the extraordinary nature of the scheme should also have required all those involved to put in place thorough processes to ensure that the identified risks of damaging the criminal justice processes were mitigated as far as possible from the start. It is greatly regrettable that this was not done.

76. It is apparent to us that different Secretaries of State played significantly different roles in the scheme. Those who were in post at the initial stages of the scheme were very knowledgeable about it, as was Peter Hain, a long serving Secretary of State for Northern Ireland. His evidence appears to have been heavily relied upon by Judge Sweeney in the Downey judgment. Those involved later in the scheme seemed to be much less well informed about the detail of the scheme, and did not have the same role with regard to individual OTRs. This may have been because the scheme had become firmly established by the time they became the Secretary of State and it continued to be operated by NIO Officials. It was wrong the final scheme continued without the full involvement of successive Secretaries of State.

Role of the RUC GC/PSNI in the initial scheme

77. Sir Ronnie Flanagan, who was the Chief Constable of the RUC when the scheme began, told us about the initial Police Service involvement in looking at OTR cases. He stated, "if we take April 1998 as the signing of the Good Friday Agreement, it would be some time after that […] My recollection is that in—I am guessing—1999 or 2000 we [the RUC] would have been asked questions about identified individuals."[48]

78. He went on to describe how the scheme operated at the time he was Chief Constable as follows:

    during my time as Chief Constable there would have been that process—a process chaired by the then Director of Public Prosecutions—to consider the position of individuals […] We were given the name of an individual and considered all of the intelligence, if there was any that we held about that individual, and whether there was any fingerprint, DNA or physical witness evidence or anything else, and if, after an examination of all of that, we had no grounds for arresting a person whatever.[49]

79. Sir Ronnie saw the role being undertaken by the police at this stage as normal policing. When we asked him whether what the police were doing was normal and if they were just confirming whether there was enough evidence to prosecute, Sir Ronnie told us, "Yes. That is a fair description."[50]

80. The scheme developed into something more formalised as it continued. In 2002, the PSNI drafted Terms of Reference for the scheme, which listed everybody's responsibilities[51].

81. Sir Hugh Orde, formerly PSNI Chief Constable, differed in his view to Sir Ronnie Flanagan. He described the scheme as something unusual, and different to what would normally be considered a normal review process. He expressed the view that:

    This was without question different from any other review process in my professional experience as a police officer. People are circulated as wanted; there is an obligation on the service nationally to review those cases routinely to see if those cases still stand up, because if you do not, someone may end up getting arrested when you have not got a case, and that is a) unlawful and b) expensive. So, there is a process in this country. The unique part was that we would then routinely communicate that information to the prosecuting authority. That was different; we would not do that in the United Kingdom routinely.[52]

He did make it clear that he did not see anything unlawful about the scheme or the role carried out by the PSNI.

82. We also looked at whether there was any undue political pressure put on the police during the original administrative scheme. Sir Hugh Orde stated he was:

    very concerned that the suggestion is that at any stage, at any time, one of my senior investigators was put under any pressure to release serious terrorist suspects—of course, in the particular case referred to by Mr Baxter, one of whom was convicted. It did not happen in my judgment and I would be very, very surprised if any such call was made in that regard.[53]

83. Whilst the role being undertaken by the RUC GC/PSNI were highly unusual, the police and prosecuting authorities carried out their task with appropriate diligence during these early years of the scheme, in what were very difficult circumstances. We are very concerned by Mr Norman Baxter's assertion of political interference in policing matters and hope it is investigated properly.

Role of the Public Prosecution Service for Northern Ireland

84. We have heard from various witnesses that the former DPP(NI), Sir Alasdair Fraser QC, played a vital role in the initial scheme, to the extent that, according to Kevin McGinty, he "insisted that he would take decisions personally himself. We tried everything we could to try to ensure that the decisions that were taken were as good as they could possibly be."[54]

85. Barra McGrory stated that the DPP(NI)'s role in the initial scheme was as follows.

    Sir Alasdair became engaged with the scheme to give a prosecutorial assessment of the individuals whose names he was given by the police. It would have been clear that there was some method of communicating that to the individuals concerned, but the Department of the Director of Public Prosecutions was not involved in that and was not sighted on the majority of the letters at that time.[55]

He also told us that:

    Anyone who knew Sir Alasdair [Fraser] will know that he was not only a man of the utmost integrity but he was fastidious in his record keeping and documenting of events. So, we have the benefit of his fastidiousness in that regard.[56]

Overall conclusions on the initial scheme

86. Whilst the scheme may not have given Sinn Féin exactly what they wanted, it was designed to go well beyond the terms of the Belfast Agreement early release scheme to cover a much wider range of people. It allowed people to return to the UK, without going through any judicial process. It also allowed prison escapees to return to the UK, without serving the remainder of their sentence or being charged with escaping from prison.

87. At this point we would also like to recall what Barra McGrory told us, that these people in "normal circumstances, would be arrested, interrogated"[57] before a decision was made to drop the case for their prosecution, which would give the police a chance to gather further evidence. The initial scheme also moved at a much slower pace, with 80 letters issued over seven years, than was subsequently the case with Operation Rapid, which is discussed in Chapter 5.


12   The Hallett Review, The Report of the Hallett Review, July 2014, para 2.21 Back

13   Q1301 Back

14   Q1301 Back

15   The witness requested that his evidence be amended to clarify that the 95 individuals are linked in some way or other to 200 murder investigations, "touching upon 295 murders", but that linkage may only be in intelligence. Back

16   Q696 [Drew Harris] Back

17   Q1301 Back

18   Q1949 Back

19   Downey Disclosure Documents, p 5, Letter from Tony Blair to Gerry Adams, 5 November 1999 Back

20   Downey Disclosure Documents, p 37, Letter from Tony Blair to Gerry Adams, 5 May 2000 Back

21   The Hallett Review, The Report of the Hallett Review, July 2014 Back

22   Q2659 Back

23   As defined by Nothern Ireland (Sentences) Act 1998, s3(7) Back

24   Downey Disclosure Documents, p 12A, Letter from Bertie Ahern to Tony Blair, 23 December 1999 Back

25   Downey Disclosure Documents, p 120, Note of Meeting with Sinn Féin (26 July 2000) by Jonathan Stephens, 27 July 2000 Back

26   Q3731 Back

27   Downey Disclosure Documents, p 24, Note of meeting with Irish officials and Sinn Féin (2 May 2000) by Jonathan Stephens, 3 May 2000 Back

28   Q2955 Back

29   Downey Disclosure Documents, p 66, Letter from Lord Williams to Peter Mandelson, 2 June 2000 Back

30   The Crown Prosecution Service, 'The Code for Crown Prosecutors', January 2013 Back

31   Q2576 Back

32   Q3682 Back

33   As we will set out later, the public interest test was used in certain limited cases Back

34   Downey Disclosure Documents, p 65, Letter from Lord Williams to Peter Mandelson, 2 June 2000 Back

35   Downey Disclosure Documents, p 209, Minutes of OTR meeting with Sinn Féin, 31 August 2000 Back

36   Downey Disclosure Documents, p 219, Minutes of meeting between Peter Mandelson and Lord Williams, 11 September 2000 Back

37   'Statement by Secretary of State, Peter Mandelson MP on extradition of convicted fugitives', Northern Ireland Office press release, 29 September 2000 Back

38   Barra McGrory (OTR0018) para 10 Back

39   Q558 Back

40   Q3315 Back

41   Q3407 Back

42   Q2321 Back

43   Q1696 Back

44   Downey Disclosure Documents, Peter Hain Witness Statement to Mr Justice Sweeney, 30 January 2014 Back

45   Downey Disclosure Documents, Peter Hain Witness Statement to Mr Justice Sweeney, 30 January 2014 Back

46   Q1720 Back

47   Q1700 Back

48   Q424 Back

49   Q432 Back

50   Q488 Back

51   The Hallett Review, The Report of the Hallett Review, July 2014, Annex 7 Back

52   Q267 Back

53   Q260 Back

54   Q663 Back

55   Q1416 Back

56   Q1297 Back

57   Q1299 Back


 
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