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

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]


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]


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.


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.


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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Prepared 24 March 2015