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.
Names
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.
ACCESS TO THE NAMES
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.
SHOULD THE NAMES EVER BE PUBLISHED?
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.
VIEWS OF JONATHAN POWELL
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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