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

4  The OTR letters

120. One of the most vital and controversial components of the administrative scheme were the letters of comfort sent to those 'not wanted', first by Jonathan Powell, subsequently by Officials in the NIO and eventually two by the PSNI from January 2011. There has been significant debate about the status of the letters, their withdrawal, and the secrecy that surrounded the circumstances in which they were issued. We will explore these issues in this chapter.

121. The standard text of the letters, drafted between the AGO and the NIO in March 2001, eventually became:

    The Secretary of State understands on the basis of information available that there is no outstanding direction for your prosecution in Northern Ireland there are no warrants in existence nor are you wanted in Northern Ireland for arrest, questioning or charge by the police. The RUC [later the PSNI] are not aware of any interest in you from any other police force in the United Kingdom. If any other outstanding offence or offences came to light, or any request for extradition were to be received, theses would have to be dealt with in the normal way.[77]

122. The Attorney General at the time, Lord Williams, warned that the biggest risk of a scheme like this was that if there was a mistake in the letter there was a risk of an abuse of process. The letters also contained the phrase "not aware", which suggested that all checks had not been carried out, so other police forces could come forward with information. This wording was imprecise, and open to interpretation, and made it unclear as to what, if any, guarantee they were intended to give.


Why those names

123. We understand that initially Sinn Féin put forward the names of supporters who were strong advocates for the peace process, and were key individuals, in the Sinn Féin hierarchy. It is clear, however, that as the scheme matured, Sinn Féin increasingly put forward names from a broader group of people and not just those who could contribute to the peace process.

124. None of our witnesses has suggested reasons as to why Sinn Féin put forward these particular people. Sinn Féin must have been aware that at least some of them were wanted by the police for serious terrorist offences, and Sinn Féin would have been aware of the crimes for which they were wanted.

125. By the end of the scheme, a total of 228 names were put forward from Sinn Féin, the Prison Service and the Irish Government. Of those, 187 were deemed free to return. We have not seen the list of the 228 names, but we have not seen conclusive evidence that convinces us to believe that all 228 on the list were so essential to the peace process and vital to its survival of that process that they were allowed to return to Northern Ireland. In his witness statement to the Downey case, Gerry Kelly stated:

    Sinn Féin for whom I speak in this statement emphasises that it is impossible to overstate the importance of the assurances given to the 187 recipients, which included John Downey, being maintained. These were essential in the achievements which began with the Good Friday Agreement in 1998, and were consolidated in the St Andrews Agreement in 2006 and the commencement of the Northern Ireland Assembly in 2007.[78]

126. We invited Sinn Féin to give evidence to us in public to explain fully why it was so important that these people came back within the UK jurisdiction. It might have reassured some victims if Sinn Féin representatives had appeared in public to explain their insistence upon having the OTR issued resolved. They, however, declined to appear. Amongst other issues, we would have welcomed the opportunity to have been able to ask Sinn Féin what they thought John Downey could have contributed to progressing the peace process in Northern Ireland.


127. Unlike Dame Heather Hallett, the NIO and the PSNI, this Committee has not had access to the names on the OTR list. The Committee's conclusions and recommendations are, therefore, based only on the evidence given orally in public or in writing, and which is also available to members of the public.


128. As we say above, we have not been given access to the names of those who received OTR letters, and are not part of the group of people who are keeping this vital information from victims and the general public. We questioned the current Secretary of State Theresa Villiers MP about her refusal to publish the names, and she explained, "I do not think it would be helpful to do that. I think there are privacy concerns"[79]. She continued that, "there are security concerns as well, in terms of HM Government's obligations under Article 2 of the European Convention on Human Rights. I do not believe it would be appropriate to publish the individual names. Releasing the names could also risk prejudging any investigations into these people".[80]

129. The Report of the Hallett Review had access to the names, but Dame Heather Hallett makes clear she received the names under strict confidentially and was not entitled to release them. It was, she said, "for others to decide whether they are bound by the same principle [of confidentiality]", but she did not say that she had concerns about the release of the names.

130. When Deputy Chief Constable Drew Harris appeared before us on 7 November 2014, we asked him whether he was able to release the names, and his response was:

    I have weighed this decision up. One has to consider the rights of the suspect—this is potentially an Article 2 right, because this is only about serious crime, so you would be concerned about someone doing harm to the individual—against the potential for harm to the public of someone who is a fugitive, whom you have already made strenuous efforts to try to locate.[81]

131. A number of Members of the Committee felt that the names of those who had received letters should be published immediately, provided that publication would not prejudice any future trial and would not cause any security risk to the individual named. It was felt that naming the individuals would go some way towards restoring faith in the justice system where it may have been lost due to the way the in which the administrative scheme was run. Others on the Committee, however, felt that the names should not be published at this point. However, there was strong agreement that Operation Redfield should be carried out as quickly as possible so that a full assessment is made of the current status of those who had received letters.

Status of the letters at the time they were issued

132. Barra McGrory QC, the DPP(NI), said that from a prosecutorial point of view he believed the letters were valueless. He told us, "They are not, maybe, entirely worthless [to the individuals to which they were issued], but I think they are largely worthless. That is my view as a prosecutor."[82]

133. Other witnesses said the letters were not an amnesty. Rt Hon Dominic Grieve MP, the then Attorney General when he gave evidence to the Committee, told us, "These letters do not constitute an amnesty. An amnesty would require legislation and, actually, revoking an amnesty after you have legislated for one might well raise some very difficult and complex issues indeed."[83]

134. Lord Mandelson agreed the letters were not an amnesty, he said, "the letters were written on the basis of evidence currently available to the police and the prosecuting authorities. By extension, if evidence had emerged subsequently, then, in principle, the police could have revisited those cases."[84]

135. When the then Chief Constable, Matt Baggott, appeared before us he told us the letters were supposed to convey whether someone was wanted at a moment in time. He said "It is a moment in time. It is your status at that moment in time. It is what information we have on you."[85] This suggests that the person's status could be reviewed at a later date, and a different decision could be made. However, we question who had the authority to inform people that they were free to return to the UK without fear of arrest.

136. Whilst former PSNI Officer DCS Norman Baxter did not know letters were being sent out by the NIO, he believed that his recommendation, on which the letters were based, was only relevant on the day it was made. This again suggests that the person's status was something that could have been changed and was something that did not confirm a permanent or final assessment. He told us:

    I know they are called "comfort letters", but, from my perspective, they were only valuable on the day they were printed. I did not send letters, but my recommendation to Mr Sheridan [former Assistant Chief Constable in the PSNI, and in charge of Operation Rapid] was only relevant on the day it was made.[86]

137. The first Chief Constable who dealt with these letters was Sir Ronnie Flanagan, who told us that the letters should not prevent someone from being prosecuted. He stated: "These letters should not in any sense—and I have said it again and again today—be a barrier to the investigation of crimes or to the arrest of people or the prosecution of people."[87] However, precisely the opposite occurred in John Downey's case; the OTR letter was key to him walking free from the Old Bailey.

New evidence

138. We considered whether the letters could still be relied upon should new evidence come to light. We heard from Kevin McGinty, of the AGO, that he thought the letters would no longer be valid, if this was the case. He told us:

    If fresh evidence became available, then there would be no bar to prosecuting that individual. There would inevitably be an abuse-of-process argument, but we would survive that because we would be able to show that since that letter had been sent, new evidence had come to light.[88]

139. Matt Baggott told us that there was some difficulty in assessing whether the situation would be the same if, for example, something had been missed in the file. It is unclear whether this would constitute new evidence. He said, "That would be a matter for the Public Prosecution Service to take forward, because that would probably need a mechanism in relation to the letters that were sent. It has to be for the PPS to determine the legal route for that."[89]

140. When we questioned Dominic Grieve, Attorney General from 2010 until July 2014, on the issue of missed evidence, he said:

    It all depends how and where it was missed. We have to be a bit careful, but, if it is within the knowledge of the prosecutor, then the prosecutor is fixed with that knowledge, and I do not think there is any way out of that. If is something that is not within the prosecutor's knowledge, it is new evidence.[90]

He went on to agree with Lord Goldsmith, who made clear that:

    I have said, from early on that a risk involved in sending any letter of that sort was that if it was not accurate, if it was misleading, somebody might afterwards be able to say that they had been misled and it was an abuse of process, in the light of what was said to be an assurance, for them to be prosecuted.[91]

141. The letters themselves, and subsequent statements by the PSNI and NIO, have left it unclear quite what "new evidence" would be required for a prosecution to be brought against a recipient of one of the letters. This issue is key and should have been addressed before the text of the letters was decided so that all involved were clear regarding what could and could not be considered. This issue exposes again the lack of care that was taken in designing the scheme. This is a point which needs to be clarified, particularly given the statement by the PSNI that 95 recipients of letters are potentially linked, by intelligence, to almost 300 murders.

Sinn Féin's reliance on the letters

142. Sinn Féin thought individuals were receiving clarification of their legal status and something much more than whether they were wanted at a particular moment in time.

143. To back up how important these letters were to Sinn Féin, Gerry Kelly's written statement to the Downey judgment said:

    The Court will be aware from the presence of Sinn Féin MPs at the hearing to date in the case, as well as the presence of the Irish Government, of the importance that is attached to the firmness of each of the building blocks of the peace process in the North of Ireland and reliance of the assurance given, by all parties to those agreements, to those assurances being honoured by those who gave them.[92]

This again makes it clear that Sinn Féin thought that the letters were far more than simply a statement of facts, and that the letters gave reliable assurances about the permanent status of those who received them.

144. Lord Mandelson, however, told us that Sinn Féin were not entirely satisfied with the scheme, and viewed it as "sub­optimal from their point of view would be the expression I would use".[93] This suggests Sinn Féin had some reservations about how strong an assurance the letters intended to convey. He also stated that:

    I can assure you the exercise of the royal prerogative, combined with withdrawing extraditions, did not make them [Sinn Féin] put the bunting up and jump for joy in the streets. They thought that was just a token concession to string them along for a bit longer.[94]

145. Tony Blair agreed with this analysis, telling us that, "Gerry Adams wasn't saying, 'Thank you for this administrative scheme.' He was saying, 'You let us down because you haven't done what you promised to do.'"[95]

146. Sinn Féin stated that it was "impossible to overstate the importance of the assurances" the letters gave. It is unclear whether this means Sinn Féin took the letters to have some legal status beyond being a simple statement of facts at the time, but it is difficult to see how the letters could have been thought to have such significance if taken purely at face value. The fact that Gerry Kelly refused our invitation to give public evidence has denied Sinn Féin the opportunity to explain what assurances they had been given by HM Government as to the status of the letters.


147. Jonathan Powell, who was Chief of Staff in Downing Street from 1997 to 2007, when asked how he sold the letters to Sinn Féin as a way of moving forward, told us:

    What we said, rather unfortunately as you will see from the letter, [from Tony Blair to Gerry Adams in November 1999][96] is, "Yes, we will fix it and we will do it straightaway," […] The administrative scheme was dealing with those people who were not wanted. The solution we were looking for was people who were wanted. This was a way of dealing with people who should not be made to wait until the solution had been found.[97]

148. However, in contrast, in his witness statement to the Downey judgment he stated that:

    Although this had not been the first solution envisaged by the British Government in its wish to deal with this particular aspect of the past, nevertheless it was intended to provide a solution that worked in practice even if more slowly and in a more cumbersome and less universal way than had been wished by those negotiating on behalf of Sinn Féin.[98]

149. In his witness statement, he suggests that the administrative scheme was a solution to the problem of OTRs. However, in his evidence to us, he implied that the problem had not been solved. When questioned by us about this disparity and apparent change of view of what the letters were intended to convey, he stated:

    I am not saying that they are somehow irrelevant, otherwise I would not have signed the two letters in Downing Street at the beginning, in order to do it speedily. It was important that we showed to Sinn Féin that we were trying to deal with those who were not wanted. That was an integral part of our negotiation. What they were not is the big issue in the negotiation, which was dealing with those who were wanted.[99]

New status as a consequence of the judgment

150. As well as bringing the administrative scheme into the public domain, the judgment in R v Downey made it clear there was at least one error in the scheme (Downey). The judgment resulted in the prosecution being stayed. It is unclear whether the judgment, therefore, gave a higher status to the letters as a whole, or it was solely based upon the specific circumstances in Downey's case. The Report of the Hallett Review concluded that:

    the ruling in Mr Downey's case was very much on its own facts. It is a first instance decision. It does not bind any other judge in any part of the UK. It does not follow, therefore, from the result in Mr Downey's case that recipients of letters of assurance can never be prosecuted nor does it mean that evidence which existed before a letter was sent (but was considered insufficient to justify arrest at the time the letter was sent) can never be used. It will depend on the individual circumstances.[100]

Former Attorney General, Lord Goldsmith, appeared less convinced in his reasoning. He stated:

    I think the judge decided in this particular case that it was a barrier to prosecution. It depends what you say in the letter and what is understood by it. The judge decided in this case that it was an abuse of process to continue with the prosecution in the circumstances of a letter in that form. We had wanted to avoid that sort of issue and if the letter had been accurate it would have been avoided. The problem goes back to the inaccuracy of the letter that was sent.[101]

151. Whatever the intended consequences of the comfort letters that were issued, it is clear to us that the issue of a letter to Downey was the result of errors during the process. Whatever the original status of the letters, the fact that a letter was issued to Mr Downey resulted in him being able to successfully claim an abuse of process, preventing him from being prosecuted for his alleged involvement in the Hyde Park bomb.

Withdrawal by the Secretary of State

152. On 3 September 2014 the Secretary of State, Theresa Villiers MP, told us that HM Government would no longer stand by the OTR letters, she stated:

    no-one should take any comfort from these letters—no-one should rely on them. Decisions of the independent police and prosecuting authorities on whether individuals are prosecuted will be on the basis of decisions made now, not decisions made at some point in time in the past, and those decisions will be made on the basis of all the available evidence. To those who have a letter I say: if the police or prosecuting authorities have evidence that is available today or becomes available in the future to pursue you, they can and will pursue you.[102]

153. Her evidence raised the question of whether this announcement changed the current status of the letters, and what would happen should another case arise where a letter is produced in evidence before the courts, especially if the recipient had relied on it to their detriment, as John Downey did.

154. After this statement by the Secretary of State, the Deputy Chief Constable of the PSNI, Drew Harris, told the Committee that those on the lists were now being treated as potential suspects, and that the police, through "Operation Redfield", were looking at whether there was potential for prosecution in each individual case. He told us:

    We regard these individuals as the same as any other citizen and their letters are now without worth. In respect of the investigations, these are investigations into serious crime and if evidential thresholds are met, and even the requirements of the investigation are met, then an interview report will follow to the Public Prosecution Service.[103]

155. We have some concerns about the weight the Secretary of State's statement, issued on 9 September 2014, carried. In it she admitted that she could not give a 100 per cent guarantee that future prosecutions would not fail despite her statement. She said:

    These decisions are rightly matters for independent police and prosecuting authorities, and no option is available to me that will give us 100% protection against a successful abuse-of-process defence in the future. This is, however, the most effective and expeditious way I can seek to remove potential barriers and reduce the likelihood of another prosecution collapsing.[104]

156. Barra McGrory told us that "another prosecution is under consideration. In fact, it is under way, but the recipient of the letter has challenged the prosecution on the basis of the receipt of that letter. So this issue will be tested in the court imminently."[105] It is therefore still unclear what impact the Downey judgment or the Secretary of State's statement will have in legal actions where any subsequent 'comfort letters' are relied upon in evidence; much will depend on the individual circumstances of the letter issued.

157. The Government should set its mind to ensuring that all necessary steps are taken, including, if necessary, introducing legislation to ensure the letters have no legal effect.

77   Downey Disclosure Documents, p446, 'Standard text of the OTR letters drafted between the Attorney General's Office and the Northern Ireland Office', March 2001 Back

78   Downey Disclosure Documents, Gerry Kelly Witness Statement to Mr Justice Sweeney, 3 January 2014 Back

79   Q2395 Back

80   Q2495 Back

81   Q3117 Back

82   Q1379 Back

83   Q2190 Back

84   Q2984 Back

85   Q712 Back

86   Q52 Back

87   Q515 Back

88   Q578 Back

89   Q709 Back

90   Q2215 Back

91   Q2086 Back

92   Downey Disclosure Documents, Gerry Kelly Witness Statement to Mr Justice Sweeney, 3 January 2014 Back

93   Q2983 Back

94   Q2969 Back

95   Q3736 Back

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

97   Q2624 Back

98   Downey Disclosure Documents, Jonathan Powell Witness Statement to Mr Justice Sweeney Back

99   Q2641 Back

100   The Hallett Review, The Report of the Hallett Review, July 2014, para 9.48 Back

101   Q2088 Back

102   Q2372 Back

103   Q3099 Back

104   HC Deb, 9 September 2014, Col 786 Back

105   Q1384 Back

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Prepared 24 March 2015