2 The administrative scheme |
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
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.
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
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
Phase one, which was Sinn Féin list onethe
list of 36 namesis 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.
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.
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
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 murder
investigations, but that linkage may only be in intelligence.
All of that is now being assessed.
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"
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
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.
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.
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,
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.
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.
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[
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.
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"
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.
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.
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".
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
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
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
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." 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.
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.
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 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
The point is that we were trying to come up with
a scheme that would solve the problem of those people who were
] 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.
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 restrictions placed upon the scheme by Lord Williams, that
only the evidential, rather than the public interest test, would
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.
On 21 August 2000, Lord Mandelson wrote to the then
Attorney General, saying that he was going to drop the remaining
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.
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.
58. The scheme proposed by Lord Mandelson, in a statement
on 29 September 2000
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
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.
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
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
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.
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
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
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
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
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.
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."
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
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
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
recallbut it does not mean to say I did not knowanything
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
] I do remember the issue of ontheruns,
but I want to distinguish between the two things completely. 
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.
He also contributed by way of a witness statement
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
] 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.
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."
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."
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
Role of the RUC GC/PSNI in the
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
inI am guessing1999 or 2000 we [the RUC] would have
been asked questions about identified individuals."
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 processa process chaired by the then Director
of Public Prosecutionsto 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.
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."
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.
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.
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 suspectsof
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.
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."
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.
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.
Overall conclusions on the initial
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"
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
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
Q696 [Drew Harris] Back
Downey Disclosure Documents, p 5, Letter from Tony Blair to Gerry Adams,
5 November 1999 Back
Downey Disclosure Documents, p 37, Letter from Tony Blair to Gerry Adams,
5 May 2000 Back
The Hallett Review, The Report of the Hallett Review, July 2014 Back
As defined by Nothern Ireland (Sentences) Act 1998, s3(7) Back
Downey Disclosure Documents, p 12A, Letter from Bertie Ahern to Tony Blair,
23 December 1999 Back
Downey Disclosure Documents, p 120, Note of Meeting with Sinn Féin (26 July 2000) by Jonathan Stephens,
27 July 2000 Back
Downey Disclosure Documents, p 24, Note of meeting with Irish officials and Sinn Féin (2 May 2000) by Jonathan Stephens,
3 May 2000 Back
Downey Disclosure Documents, p 66, Letter from Lord Williams to Peter Mandelson,
2 June 2000 Back
The Crown Prosecution Service, 'The Code for Crown Prosecutors',
January 2013 Back
As we will set out later, the public interest test was used in
certain limited cases Back
Downey Disclosure Documents, p 65, Letter from Lord Williams to Peter Mandelson,
2 June 2000 Back
Downey Disclosure Documents, p 209, Minutes of OTR meeting with Sinn Féin,
31 August 2000 Back
Downey Disclosure Documents, p 219, Minutes of meeting between Peter Mandelson and Lord Williams,
11 September 2000 Back
'Statement by Secretary of State, Peter Mandelson MP on extradition of convicted fugitives',
Northern Ireland Office press release, 29 September 2000 Back
Barra McGrory (OTR0018) para 10 Back
Downey Disclosure Documents, Peter Hain Witness Statement to Mr Justice Sweeney,
30 January 2014 Back
Downey Disclosure Documents, Peter Hain Witness Statement to Mr Justice Sweeney,
30 January 2014 Back
The Hallett Review, The Report of the Hallett Review, July 2014,
Annex 7 Back