Belfast Telegraph

Saturday 25 October 2014

On-the-runs: 10 key points ...and what the report had to say about them

Adrian Rutherford and Rebecca Black examine the central findings of the inquiry into letters issued to fugitive suspects:

1. HOW THE SCHEME OPERATED

The first two letters of assurance provided to fugitives were dated June 15, 2000, and were sent from 10 Downing Street. They were signed by the Prime Minister's Chief of Staff, Jonathan Powell, and their contents related to alleged offences in the jurisdiction of England and Wales. Thereafter the vast majority of letters of assurance were sent by officials at the Northern Ireland Office.

All individual letters of assurance were accompanied by a covering letter to Sinn Fein, which confirmed the "position" of the relevant on-the-run.

On occasions this covering letter described the individual letter of assurance as confirming the "legal position" of the person concerned.

In total 228 names were put forward for the scheme. Of these 184 were submitted by Sinn Fein (of which five were found to be duplicate names); 35 by solicitors acting on behalf of Sinn Fein; four were submitted by the Irish Government; and 14 (of which four were later found to be duplicate names) were submitted by the Northern Ireland Prison Service.

A total of 156 people received an individual letter of assurance. Another 31 were informed that they were 'not wanted' in some other way.

Twenty-three individuals on the OTR list were informed that they were 'wanted'. Eighteen currently do not have a definitive answer as to their status.

There was a spike in the number of individuals receiving letters of assurance between February 2007 and October 2008.

During this time, the status of 36 individuals was changed from 'wanted' to 'not wanted'.

2. CRITICISMS OF THE PROCESS

The administrative scheme was not meticulously designed, rather it came about through an evolutionary process, Lady Justice Hallet’s report determined.

As a result, it was lacking in proper responsibility, accountability and safeguards.

When errors came to light, the report said that opportunities were missed to rectify them and to review how the scheme worked. There was no policy in place on what to do if an error was identified.

There was also no agreed policy on communicating the existence of the scheme.

The principal focus of the scheme was on offences committed in Northern Ireland. However, some of the OTRs were suspected of offences in England and Wales.

There was insufficient liaison with other police forces and senior prosecutors elsewhere in the UK.

Northern Ireland Office officials did not show the PSNI the contents of a letter of assurance before it was sent; nor did they provide a copy for PSNI files, leading Lady Justice Hallett to conclude that the PSNI did not become aware of the ‘normal text’ of the letters of assurance until December 2011.

Insufficient attention was paid to drafting the letters in accordance with information supplied by the police, in order to fit individual circumstances, the report said. The terms of the caveats included in individual letters were not carefully crafted, providing ample scope for misunderstanding.

Some OTRs were informed that their status was ‘free to return’ by means of a composite letter (covering a list of individuals) to Sinn Fein, without any warning over the effects of a change in circumstances.

Insufficient legal consideration was given to the principle of sending a letter of assurance; to the consequences of sending a letter in error; and to the consequences of informing someone that they were ‘not wanted’ with no warning as to a change of circumstances.

3. THE ISSUE OF LEGALITY

The administrative scheme, properly implemented, was not unlawful, the report found.

In reaching this conclusion, the document stated it would not be unlawful in principle for a police officer to inform another police officer, a prosecutor or the Attorney General that an individual was wanted, nor would it necessarily be unlawful in this context for an NIO official to inform Sinn Fein (and therefore the individual) that they were wanted or not wanted.

Had the letters stood alone as simple statements of fact, they might not have had legal consequences, the report says. However, it adds that the actions of state officials may acquire a consequence in law from their context.

4. THE JOHN DOWNEY AFFAIR

The Hallett report states Mr Downey received a letter dated July 20, 2007, signed by NIO official Mark Sweeney, informing him that the PSNI was not aware of any interest in him from any other UK police force.

In fact, the force was aware that he was wanted by the Metropolitan Police Service.

At the time that Detective Chief Superintendent Norman Baxter submitted his recommendation on Mr Downey to Assistant Chief Constable Peter Sheridan, he failed to mention that Mr Downey was wanted.

In 2008, the Historical Enquiries Team alerted the Operation Rapid officers in the PSNI to the fact that Mr Downey might be ‘wanted for an offence in Northern Ireland’.

When the PSNI realised that their letter to the Public Prosecution Service in June 2007 regarding Mr Downey’s status might have been erroneous, they acknowledged the potential for an argument of ‘abuse of process and bad faith’ in a future trial.

Yet they did not seek to rectify the situation, or at least seek clarification of what Sinn Fein had been told, even when the issue of the Hyde Park bombing was raised shortly thereafter.

The Hallett Report states they had at least one further opportunity to do so in the years that followed, which they also failed to take.

5. OTHER LETTERS SENT IN ERROR

The report identified two other occasions — apart from the case of John Downey — where an OTR letter was sent in error.

In one case a mix-up over a date of birth led to assurances wrongly being given to someone who was still wanted by police.

In the second instance the letter failed to mention that its contents did not relate to any offences committed after the 1998 Good Friday Agreement.

In the first case, a letter of assurance was sent to Sinn Fein based on police checks having been conducted on a person with the same name but a different date of birth from that provided by Sinn Fein.

After the letter had been sent, the potential error was identified and checks on both dates of birth were conducted. These proved negative.

Subsequently, however, the PSNI identified an individual with the same name but a different date of birth from the two people already checked and who was, in fact, wanted.

No clarification appears to have been sought from Sinn Fein as to the correct date of birth.

The letter of assurance was given by Sinn Fein to the individual who had been identified as wanted.

In the second case, a letter of assurance was sent to an individual stating he was “not wanted” by the PSNI for any offence. The letter made no reference to fact that the assurance only related to offences committed before the 1998 Belfast Agreement. He was in fact wanted for serious offences committed in 2003.

6. THE POLITICIANS WHO KNEW

According to the Hallett report, in April 1999 former Secretary of State Mo Mowlam put forward the first name — of a high-profile individual — to the Attorney General, asking him to reconsider the case and the impact a prosecution would have on the peace process.

Sinn Fein President Gerry Adams was a lead player in putting forward names for the scheme while North Belfast MLA Gerry Kelly received the letters on behalf of OTRs. In 2002, Mr Adams requested that the Secretary of State make a public statement about the scheme.

However, politicians from other parties also appeared to know about it.

In 2001, the report says SDLP MLA Alex Attwood made inquiries on behalf of an OTR who had failed to honour bail conditions in the mid-80s and was living in the Republic of Ireland.

In 2002 then Prime Minister Tony Blair met Alliance leader David Ford and the former deputy leader, North Down MLA Eileen Bell. The official minute of that meeting records that Ms Bell urged the Prime Minister not to give anything on OTRs to Sinn Fein without getting something in exchange.

It also records Mr Ford as observing that he could accept a resolution of the OTR problem along the lines of the Early Release Scheme.

7. HOW MUCH THE PUBLIC KNEW

The Hallett Report lists more than 80 references to the administrative scheme which were in the public domain. The prevalence of these references prompted Lady Justice Hallett to state that she “would not categorise the scheme as ‘secret’.”

However, the report adds that details of the scheme were treated as sensitive information by politicians, officials and police, meaning that in many cases victims failed to appreciate what was happening.

Some answers to Parliamentary Questions, Press briefings and briefings of the Policing Board contained a succinct summary of the scheme.

The report states that dozens of police officers, prison officers, civil servants and politicians must have known that some kind of scheme was in operation through which individuals received official assurances that they were not wanted.

There were a number of references to the process already in the public domain. These included references contained in the 2009 report compiled by Robin Eames and Denis Bradley.

“Those who followed political affairs in Northern Ireland closely and knew where to look might have been alerted, therefore, to the existence of some kind of scheme,” Lady Justice Hallett concluded.

8. THE DISCLOSURE OF NAMES

Lady Justice Hallett described in the introduction of the report why the decision had been taken not to name those involved with the on-the-run scheme.

“Some of my correspondents have asked me to disclose whether any of the OTRs who received a letter of assurance were suspected of terrorist incidents in which they lost members of their family,” the report’s author wrote.

She said she understood why families of those who lost loved ones in terrorist incidents would want to know whether or not people suspect of carrying out the crimes had been given letters, “but I cannot help on this issue.

“I was given access to the lists of names on strict terms of confidentiality and I am bound by those terms. It is for others to decide whether they are bound by the same principle.”

Lady Justice Hallett stressed that her refusal to ‘name names’ in the document was not as a result of any ‘whitewash’ but simply because, as a matter of law, she believed she was not entitled to do so.

“I have also been scrupulously careful not to reveal details of offences in which any OTR was a suspect (unless they are properly in the public domain) so as not to prejudice any future criminal trials,” she added.

“People, especially the victims, would not thank me if I inadvertently contributed to another successful abuse of process application. I encourage others to show similar caution.”

9. ROLE OF THE PRISON SERVICE

On February 11, 2001, a list of 14 names detailing inmates who were “unlawfully at large from prison” was produced by the Northern Ireland Prison Service.

The drawing up of this list followed discussions with the NIO over whether there were any individuals — other than those already mentioned on the Sinn Fein list — at large from prison who might qualify for early release under the commitment in the Good Friday Agreement.

Of the 14 names, four were later also submitted by Sinn Fein.

Some on the list had escaped before conviction; some after the judicial process had been completed. One was a loyalist prisoner, some were names of individuals whose whereabouts were unknown.

 In some cases, the authorities could not even say with certainty whether the people mentioned were still alive.

Checks with the RUC showed that all 14 appeared as ‘wanted’. Further checks were set in train to see if they would still face prosecution if they returned to the jurisdiction. The 14 names were added to those still under consideration.

10. CONCLUSIONS OF THE REPORT

There has been a great deal of misunderstanding and misreporting of the administrative scheme and much confusion over the various categories of on-the-runs, the report states.

The administrative scheme did not amount to an amnesty for terrorists, Lady Justice Hallett insisted. Suspected terrorists were not handed a ‘get out of jail free card’.

She found that the existence of an administrative scheme for on-the-runs was not kept secret from the public — but nor were details of the scheme broadcast to a wide audience.

However, the administrative scheme was flawed, she determined.

Under the process — if it had been properly administered — Hyde Park bombing suspect John Downey would not have received a letter of assurance, the report stated.

The PSNI’s letter to the Public Prosecution Service on Mr Downey — upon which his letter of assurance was based — failed to disclose the fact that Mr Downey was ‘wanted’ by the Metropolitan Police Service.

Lady Justice Hallett said she was given no satisfactory explanation for this failure by the PSNI.

The error was compounded by the fact that the PSNI realised its mistake in 2008 and did nothing to correct it, or at least check the nature of the assurance that had been provided to Mr Downey, who is now living in Donegal.

Lady Justice Hallett concludes: “However the scheme is characterised, I have found nothing which, to the mind of this independent observer, should be allowed to undermine the peace process in Northern Ireland.

“One catastrophic mistake has been made and it cannot be undone.

“Other mistakes have been made and need correcting. But this can be done in a measured and proportionate way.”

Further reading

Errors found in another two letters

Tony Blair was the driving force, Commons told

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