7 The Downey error
238. The full factual analysis of the Downey case
has already been set out extensively in both the Downey judgment
and in Dame Heather Hallett's Report. We have not, therefore,
rehearsed that analysis at length in this Report.
Downey's name submitted
239. Downey's name was submitted via a letter to
the NIO, on 10 January 2002, and formed part of the sixth set
of names in what has become known as Sinn Féin list two.
From the tables of 'on the runs' lists which form Appendix 5 of
the Report of the Hallett Review, we know that Downey was assessed
as "wanted" by the PSNI in September 2004, and that
Sinn Féin were informed in September 2005 that his case
was under review.
240. On 27 January 2006, Mark Sweeney, then Head
of the Rights and International Relations Division at the NIO,
wrote to the PSNI to seek clarification that Mr Downey was still
classed as wanted.[155]
When he appeared before the Committee, Mr Sweeney was able to
take us through some of these documents and explain their purpose.
He described the letter of 27 January as follows:
Mr Downey is one of the names in that letter.
You will see that the rest of the letter is redacted, because
it is from the Downey trial papers. What the rest of that letter
consists of, as I understand it, is a list of many, many other
names of people who were classed as either "wanted"
or "not wanted". This letter was part of an exercise
that Lady Justice Hallett describes in her report as seeking to
reconcile records between us and the PSNI.[156]
The PSNI replied on 31 January 2006 to confirm that
he was wanted.
241. The result of this clarification exercise was
a letter, dated 27 February 2006, from Lord Goldsmith, the then
Attorney General, to Peter Hain, the then Secretary of State for
Northern Ireland, confirming that "Downey is wanted for arrest
and questioning in respect of serious terrorist offences."[157]
When we pressed Mr Hain about whether he had seen the letter,
he told us, "I am not saying I have never seen it. I am saying
I can't recall it." We believe that he should have had sight
of the letter and responded, given its importance. Mr Sweeney
explained the purpose of the letter, and why it was not responded
to. He stated:
If I can explain what will have happened with
that letter from Lord Goldsmith, […] there were other names
in it alongside Mr Downey's. The private office will, I assume,
have received the letter, seen that it was from one Cabinet Minister
to another, known that I was the deputy director who had on-the-runs
within my team and marked it out to me in a standard way. But
the action that was required on the foot of that letter was not
to write back to the Attorney-General, and such a response wouldn't
really have said anything apart from, "Thank you, I have
received your letter."[158]
242. On 22 March 2006 the NIO informed Sinn Féin,
via Gerry Kelly, that Downey remained wanted.
Downey's case considered by Operation
Rapid
243. As a result of a meeting on 9 June 2007, DCS
Norman Baxter thought the AGO's Office would look at offences
committed in Great Britain, and Operation Rapid's Terms of Reference
stated that the Rapid team would look only at whether someone
was wanted by the PSNI. The PSNI did, however, check with the
MPS, on 13 April 2007, whether Downey was wanted by them. During
his evidence, Mark Rowley, Assistant Commissioner for Specialist
Operations in the MPS, confirmed that the "Metropolitan Police
did inform them [[…]] that he was wanted in relation to the
Hyde Park bombing offences."[159]
PSNI DECISION ON DOWNEY
244. On 7 May 2007, DCI Graham, the Senior Investigating
Officer in Operation Rapid, assessed the evidence which the PSNI
held on Downey and made the following recommendation:
a) That
Subject is listed as "NOT WANTED" by the PSNI at this
time.
b) That clarification
be sought from the Metropolitan Police as to the current position
with their circulation of Subject.[160]
245. Within the body of the Report, with respect
to the Hyde Park Bomb, it states, "he [Mr Downey] is still
wanted by the MPS subject to any new further evidence".[161]
246. On 10 May 2007, DCS Baxter produced a two-page
report on Downey for Assistant Chief Constable Peter Sheridan,
which stated the following:
The above person is a native of the Republic
of Ireland and is a citizen of the Irish Republic. He has not
resided in Northern Ireland and remains resident in his native
district. He is not currently 'on the run' from his home. I have
reviewed his case and there is no basis in my professional opinion
to seek his arrest currently for any offence prior to the signing
of the Good Friday Agreement.
The above person should be informed that he is
not currently wanted by the PSNI for offences prior to the Good
Friday Agreement 1998, but it should be borne in mind that should
new properly assessed and reliable intelligence, or new evidence
which has been judged to retain its integrity, emerge which creates
reasonable grounds to suspect his involvement in offences then
he will be liable to arrest for any such offence which may have
been committed during this period.[162]
It should be noted that this report does not refer
to the fact that Downey was wanted by the MPS for the Hyde Park
Bomb.
247. Following the receipt of this report ACC Sheridan
wrote, on 6 June 2007, to the DPP(NI), stating the following:
The above person is a native of the Republic
of Ireland and is a citizen of the Irish Republic. He has not
resided in Northern Ireland and remains resident in his native
district. He is not currently "on the run" from his
home.
Enquiries indicate that John Anthony Downey is
not currently wanted by PSNI.[163]
What happened after Downey's
case had been initially processed by the PSNI in 2007
248. Once Downey's name had been sent to the DPP(NI)
and the AGO, the NIO were asked by the AGO to check with the PSNI
whether they had done checks with all other police forces in the
UK. ACC Sheridan sent two letters to the DPP(NI)-first, in respect
of 25 names; second, in respect of 10 names-which stated that
the individuals were 'not currently wanted by the PSNI'.
249. At this stage, the NIO had not yet seen the
list of names of people who were no longer wanted; they were simply
making the inquiries based on the Attorney General's advice.
250. Following an exchange of emails within the Operation
Rapid team, ACC Sheridan sent a letter to the NIO on 27 June 2007,
with regard to their concerns about what checks had been carried
out as to whether X was wanted for arrest by PSNI for any offences
pre the Belfast Agreement or circulated as wanted for arrest by
an external force and the existence of reasonable grounds (within
the UK) or a European Arrest Warrant, and confirmed that the checks
had all been carried out:
in relation to the letters forwarded to the Director
of Public Prosecutions from the PSNI and they are the same checks
that have been carried out during previous reviews.[164]
251. On 11 July 2007, the AGO sent the further 10
names to the NIO, of which Downey was one, and again asked the
NIO to make sure that all checks had been carried out. Mr Sweeney
told us, "So my e-mail correspondence of 18 July and then
20 July was an attempt on my part to make absolutely certain that
they had done those checks in relation to the further 10"[165]
Again, the answer came back that they had been.
252. It was this email that Sir Jonathan Stephens,
current Permanent Secretary at the NIO, told us was the trigger
to send out a letter to Mr Downey. He stated:
Mr Sweeney's intervention was to clarify, "Can
we just check that, in saying that, you have checked that he is
not wanted by other police forces as well?" That check followed
on from a number of previous checks from the NIO in respect of
earlier cases as to whether those checks with other police forces
had been carried out. The response from the PSNI, from ACC Sheridan
in his letter […] was clear and unequivocal. The PSNI accepted
that the purpose of the review they were undertaking was to establish
not only whether a person was wanted in respect of the PSNI, but
also whether he was wanted in respect of other police forces,
and to confirm that those checks had been carried out.[166]
As a result of this, a letter was sent to John Downey,
via Gerry Kelly, on 20 July 2007.
Role of the DPP(NI)/AGO
253. It is clear that, on 27 June 2007, the PPS wrote
to Mr McGinty at the AGO about ten individuals, one of which was
Mr Downey, simply repeating the relevant contents of the letter
sent by ACC Sheridan to the PPS on 6 June 2007, with no reference
to Mr Downey being wanted by the MPS for the Hyde Park bombing.
In his evidence to the Committee, ACC Sheridan agreed that, "My
assessment was not amended by the DPP. It left the DPP(NI)'s office
in the same format that I sent it."[167]
Mr McGinty wrote to the NIO on 11 July 2007 in relation to ten
individuals, including Mr Downey, duplicating the contents of
the PPS letter.
254. When Mr McGinty was pressed further on the fact
the ACC Sheridan's letter only stated that Mr Downey was not currently
wanted by the PSNI, he expressed his view that the distinction
was irrelevant:
There is no sensible idea of being able to come
back to Northern Ireland if you were wanted in London, because
you would be arrested in Northern Ireland[…]To get that response
was slightly odd, because it did not mean anything, because, as
I said, even if you were wanted not by the PSNI but by the Met,
you would be arrested.[168]
SHOULD THE NIO HAVE KNOWN THAT DOWNEY
WAS WANTED
255. We questioned whether Mark Sweeney should have
recognised Mr Downey's name in 2007, given that it had appeared
in a letter from the AGO to the then Secretary of State in 2006,
whilst he was the NIO's Deputy Director responsible for the OTR
issue. The 2006 letter stated that Mr Downey was wanted for serious
terrorist offences.
256. We have noted that Downey was on a list with
10 others who were, according to Mr Sweeney, listed only as "wanted"
or "not wanted". He told us, "We would simply receive
something that would say whether or not they were wanted. We would
not have known that he was wanted or suspected of involvement
in the Hyde Park bombing".[169]
257. We also note that Downey's name was on a list
with ten others, including some who also had their status changed
due the reassessment in Operation Rapid. Mr Sweeney told us:
Then we received a letter and, in Mr Downey's
case, his was one of 10 names in the letter of July 2007 to the
NIO from the Attorney-General's office saying that Mr Downey was
no longer wanted. So, along with other individuals, the police
and prosecuting authorities had changed their assessment of Mr
Downey.[170]
258. It is therefore clear to us that the names did
not mean anything to Mr Sweeney in the NIO, so it would be unreasonable
for him to know about any potential suspicion as to Mr Downey's
alleged involvement in the Hyde Park Bomb. He told us, that:
The first is that Downey did not mean anything
to individuals in the Northern Ireland Office, including me, and
I do not think—although I cannot recall what Peter Hain
told you about this point—that his name meant anything to
Peter Hain, but you would obviously have to ask him.
FURTHER CHECKS BY THE NIO IN 2008-9
259. Downey's case was considered by the HET in 2008
and, on 7 May 2008, a PSNI Officer from the HET emailed the PSNI's
Intelligence Unit requesting clarification on the fact that Downey
was listed as "Not currently wanted by PSNI". The Operation
Rapid Team, responded by stating that:
Your presumption is correct. The decision by
Head C2 that Downey is 'not currently wanted' is based upon information
available at the time of the assessment. If further evidence comes
to light the matter would then be reviewed by an appropriate SIO.[171]
260. The Downey disclosure documents show that Paul
McGowan, of the Operation Rapid Team, emailed both ADCI Graham
and ACC Sheridan's Staff Officer on 23 July 2008 highlighting
HET's concern that Downey was not considered as wanted, despite
there being a crucial piece of evidence in relation to a double
murder for which HET had submitted a review template.[172]
261. As stated in the Hallett Review, Mr McGowan
emailed ADCI Graham and ACC Sheridan's Staff Officer to say that
he had advised HET of the existence of the DPP(NI) direction dated
May 1985 and would confirm whether they were aware of the MPS's
interest in Mr Downey. He also highlighted that DCS Baxter's report
to ACC Sheridan, and the subsequent letter to the DPP(NI), did
not state that Downey was wanted by the MPS.
262. Following this email, further investigation
into Downey's case was recommended by both Mr McGowan and ADCI
Graham. On 4 August 2008, DCS Baxter, forwarded this email and
stated:
The discovery of new evidence in this case may
provide an opportunity to recommence an investigation which may
lead to a potential prosecution.
This is a matter which I feel should be discussed
with HET to determine if they are prepared to conduct a full investigation.
The issues of integrity highlighted in the PPS direction of 1985
would also need to be reviewed to determine what impact this would
have on the rediscovered evidence.
263. The Downey Judgment highlights that further
queries were made as to Downey's status in 2009. It states:
On 21 October 2009 an internal PSNI report (p.796)
recorded that the defendant was one of a number of individuals
whose name was checked against lists held by Operation Rapid with
the result: "Status reviewed by Op Rapid and assessed as
'not currently wanted' by PSNI. He is, however, alerted on PNC
as wanted for murder 20/07/82 (Hyde Park Bombing)".[173]
Again, nothing was done to alert the DPP(NI),
or anyone else, in relation to the defendant being wanted by the
Metropolitan Police in connection with the Hyde Park Bombing.[174]
264. We heard from ACC Peter Sheridan that one of
the reasons that the PSNI "did nothing to correct the situation"
was that they did not know that these letters were going out.
He stated:
If we had been given notification that this letter
was going out "and it is going to say this", then that
would have gone to the Rapid team, who would have, right away,
seen that it was wrong, because they would have known.[175]
265. If
the PSNI, specifically the Operation Rapid team, had known the
terms of the letter sent out to those 'on the run' by the NIO
they would have been able to ensure that its content was factually
correct. Without knowing the content of the letter, it was impossible
for them to 'correct a mistake' when they were presented with
new information. We believe that Norman Baxter acted in good faith
throughout.
266. At no point
in the exchanges between the NIO and the PSNI, did the NIO mention
why they were carrying out follow-up checks, nor did they send
to ACC Sheridan the proposed letter to Downey, so that he could
check with the Operation Rapid team that it was correct.
267. ACC Sheridan
did not know that Downey was wanted by the MPS, so would not have
been able to correct the mistake even if he had had sight of it;
however, if he had shared it with the other members of the Operation
Rapid team, they would have been able to correct the mistake.
268. We have
noted also that it was the NIO that queried the level of checks
carried out by the PSNI, not the DPP(NI) or the AGO. It is unclear
why the queries went directly to ACC Sheridan's office, and not
back to the AG office and the DPP(NI) and, finally, the PSNI.
269. The NIO
did not know what offences Downey had committed, as they do not
have access to police files. This lack of knowledge on behalf
of those who sent the final letter is a major failing of the scheme.
No letters should have been sent out by the NIO, and they should
have had no involvement in the scheme after sending the names
on to the AGO. The prosecuting authorities should have sent out
the letters, as they would have been in a position to ensure their
content was correct by checking the files before the letters were
sent.
Should the case have been appealed?
270. On 25 February 2014, the then Attorney General,
Dominic Grieve QC MP, made the decision not to seek to appeal
Mr Justice Sweeney's judgment. He subsequently told the House
of Commons:
The court has now heard full argument and has
considered a great deal of documentation. The judgment given is
a detailed and careful assessment of the case and the circumstances
in which Mr Downey received his letter. The CPS and I do not consider
it gives rise to any prospect of successful appeal, and I am therefore
of the view that the matter cannot be pursued further.[176]
271. When he appeared before the Committee he expanded
on this decision not to appeal the judgment, and told us:
I did bring the prosecution, but I also read
the judgment with great care. Indeed, I have re-read the judgment
before I came here again this afternoon, as I had not looked at
it for a while. I sat down with the most senior lawyer within
the CPS dealing with terrorism crime, and I sat down with the
prosecuting barrister, who was previously First Treasury Counsel
at the Old Bailey before he moved onto other things, but he is
still doing prosecuting work for us. We discussed this case in
great detail before we took the decision not to appeal the judge's
judgment.[177]
272. We note that the judge considered witness statements
from Peter Hain, Jonathan Powell and Gerry Kelly, the content
of which was agreed by both sides, as part of the evidence put
forward at the Downey trial. These statements were clearly given
considerable weight. An appeal might have provided an opportunity
for a fuller and more a balanced picture about the status and
context of the letter to have been presented, especially in the
context of the weight that may have been placed on the statement
in the original letter, subsequently shown to be erroneous, that
the PSNI were "not aware" of Downey being wanted in
connection with offences outside Northern Ireland.
273. In taking evidence, we heard views from those
who considered that the judgment should have been appealed. The
Northern Ireland Attorney General, John Larkin QC, told us that
he thought there were avenues to be explored upon appeal. He stated:
With the Margus judgment, and as one reads the
careful decision by Mr Justice Sweeney, it seems to me that there
is no explicit weighing of the article 2 rights of the next of
kin of the deceased. This strikes me, looking at it now, with
the benefit of the subsequent decision of the Grand Chamber in
Margus, as perhaps something that could have been usefully explored
on appeal.
Of course, our system of criminal justice, as
you know, does not, unlike, particularly, the French system, have
a formal role for the next of kin of victims. But it does strike
me that, subject to issues about time limit, this is not a reference
to appeal, but the next of kin could quite possibly pray in aid
the Margus decision in an application to Strasbourg.[178]
274. Lord Goldsmith, who was Attorney General from
8 June 2001 until 27 June 2007, also thought a different judge
may have taken a different decision. He stated:
I am not sure whether I asked myself the question
whether I was surprised. I was conscious, as 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. There are a number of
cases, in different ways in the criminal law, quite different
circumstances, where people have been able to avoid prosecution
even for serious crimes on the basis of an abuse of process by
the prosecution. It is quite a tough regime. This may be quite
a tough example of its operation. If the letter had been corrected,
then the situation really would not have arisen, but I understand
the legal thinking behind it, though I think that other judges
might have reached a different conclusion.[179]
275. Early in the process, advice to this effect
was circulated to the NIO by Lord Williams. The successful abuse
of process cases show the danger of having checks carried out
by a team kept in the dark as to what information the letters
conveyed. Extreme care needed to be taken to avoid this situation
arising in the first place.
Conclusion
276. The only point we believe which the judgment
could be appealed is on the "Third ground", described
in the Downey judgment as:
a balancing exercise between the public interest
in ensuring that those who are accused of serious crime should
be tried and the competing public interests in ensuring that executive
conduct does not undermine public confidence in the criminal justice
system and bring it into disrepute, and in holding Officials of
the state to promises they have made in full understanding of
what is involved in the bargain.[180]
277. The
judgment in the Downey case served to highlight the inherent risk
in the design and subsequent operation of the scheme. It created
a situation in which the trial of a suspected terrorist could
not proceed because the judge concluded that it would be an abuse
of process. We recall that is exactly what Lord Williams of Mostyn
warned could happen. We regret that neither the judge nor the
prosecution sought witness statements on the nature of the OTR
scheme from other parties to ensure that the understanding of
the role and importance of the OTR scheme at the time of the decision
was consistent with that now expressed by successive Secretaries
of State in evidence to this Committee. The then Attorney General,
Dominic Grieve, concluded that the judgment should not be the
subject of an appeal. We, nevertheless, consider his decision
to be a matter for regret, because an opportunity was thereby
missed to enable further judicial consideration to be given to
whether the integrity of the legal system has been damaged more
by discontinuing the trial of someone accused of multiple murder,
because of the politically motivated and exceptional scheme for
OTRs, than would have been the case had the trial continued. Further
judicial consideration could also have been given as to the prevailing
political situation when making the judgment.
Further mistake
278. The Report of the Hallett Review highlighted
two further errors found during her investigations. Further details
of what the report describes as "error 2" came to light
on 26 January 2015. It relates to the fact that someone had been
sent a letter, even though they were wanted in connection with
a very serious offence committed in 2003, five years after the
Belfast Agreement had been signed.
279. The Secretary of State commented in a statement
to the House on 27 January 2015:
On Monday 26 January, the coroner conducting
the inquest into the death of Mr Gareth O'Connor, who disappeared
in May 2003, directed that the inquest should be stayed pending
an investigation by the Police Service of Northern Ireland into
one of the suspects in Mr O'Connor's murder.[181]
280. This letter had been sent to a suspect in the
case of the murder of Gareth O'Connor. His family believes that
he was murdered by the Provisional IRA.
281. We are concerned about this further revelation
for several reasons. Firstly,
although Dame Heather Hallett highlighted a second error when
her report was published in July 2014, it would appear no action
was taken to try to rectify the error, or to withdraw the letter.
282. Moreover, this
case also highlights again the fact that the NIO sent out 'comfort
letters' even though the PSNI's Terms of Reference for Operation
Rapid clearly stated that the police would review suspected terrorist
offences committed before the signing of the Belfast Agreement[182].
155 Downey Disclosure Documents, p 722-726, Letter from Mark Sweeney to the PSNI,
27 January 2006 Back
156
Q3799 Back
157
Downey Disclosure Documents, p 733-734, Letter from Lord Goldsmith to Peter Hain.
27 February 2006 Back
158
Q3941 Back
159
Q2824 Back
160
Downey Disclosure Documents, p 762-763, PSNI Assessment Review File for John Downey,
7 May 2007 Back
161
Downey Disclosure Documents, p 762-763, PSNI Assessment Review File for John Downey,
7 May 2007 Back
162
Downey Disclosure Documents, p 764-765, Report by Norman Baxter to Peter Sheridan,
10 May 2007 Back
163
Downey Disclosure Documents, p 766, Peter Sheridan's letter to the Department of the Director of Public Prosecutions,
6 June 2007 Back
164
Downey Disclosure Documents, p 769, Letter from Peter Sheridan to Hilary Jackson,
27 June 2007 Back
165
Q3838 Back
166
Q3514 Back
167
Q3171 Back
168
Q582 Back
169
Q3864 Back
170
Q3800 Back
171
Downey Disclosure Documents, p 790, Email exchange between the HET and PSNI,
May 2008 Back
172
Downey Disclosure Documents, p 794, Email exchange between members of HET and PSNI,
July to August 2008 Back
173
Judiciary of England and Wales, 'The Queen-v-John Anthony Downey',
21 February 2014, para 136 Back
174
Judiciary of England and Wales, 'The Queen-v-John Anthony Downey',
21 February 2014, para 137 Back
175
Q238 Back
176
HC Deb, 26 February 2014, Col 266 Back
177
Q2157 Back
178
Q1661 Back
179
Q2086 Back
180
Judiciary of England and Wales, 'The Queen -v-John Anthony Downey',
21 February 2014, para 162 Back
181
HC Deb, 27 January 2015, Col 730, [Commons Chamber] Back
182
See Appendix 2 Back
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