Scope of OTRs review spelled out
A judge investigating a Government scheme to deal with fugitive republicans will not be required to examine each individual case in detail or consider the lawfulness of letters sent to IRA suspects, official correspondence has indicated.
The exchanges between a senior official in the Northern Ireland Office (NIO) and the Lord Chief Justice of England and Wales reveal exactly what the Government expects of Lady Justice Heather Hallett - the judge appointed to conduct the review ordered by the Prime Minister.
With Stormont politicians having disagreed on what the probe will deliver, the letters between Julian King, the director general of the NIO, and Lord Thomas of Cwmgiedd provide the fullest detail to date. They have been published on the suggestion of Lord Thomas.
David Cameron announced the probe in the wake of the controversy triggered by the collapse of a case against a man accused of the IRA's Hyde Park bomb in 1982 - an attack that killed four soldiers.
The prosecution of John Downey, 62, from Co Donegal, was halted last month when it emerged he was wrongly sent a so-called letter of assurance informing him the authorities in the UK were not looking for him. Downey, who was wanted by detectives in London, had denied the murder of the four soldiers.
Contention intensified when it emerged that around 190 letters had been sent to on-the-runs (OTRs) under a scheme agreed by the previous Labour government and Sinn Fein.
Many politicians at Stormont, particularly unionists, reacted furiously, claiming they knew nothing about the administrative scheme. Sinn Fein accused their rivals of manufacturing a crisis and claimed information about the process was already in the public domain. Republicans moved to downplay the significance of the letters, rejecting the claim they amounted to amnesties, and instead claimed they were merely a statement of fact about an individual's status at a point in time.
The broad terms of reference for the review were to produce a full public account of the operation and extent of the administrative scheme; to determine whether any other letters sent through the scheme contained errors; and to make recommendations on those or "related matters" drawn to the attention of the inquiry.
In a letter Mr King wrote to Lord Thomas earlier this month, just before Lady Justice Hallett was appointed, he said it was for the reviewer to decide how to carry out the remit.
But he said it might be helpful to "set out more fully matters which are, and are not, intended to be within the ambit of the review".
"The purpose of the review is to examine the operation of the administrative scheme for OTRs," he wrote.
"While the reviewer is free to consider the circumstances that led to the establishment of the scheme, a full examination of the political decisions and agreements making up the Northern Ireland peace process is not required.
"It is envisaged that to produce a public account of the scheme the reviewer will not need to examine the detail of every individual case dealt with under the scheme, but will look at a sample of cases from across the scheme."
Mr King added: "The reviewer may choose to look at the grounds on which the police and prosecutors reached the decisions they did and the general approach they used, but will not need to reinvestigate every case or make a fresh decision about whether a recipient of a letter should or should not have been pursued for arrest and prosecution. Decisions in respect of arrest and prosecution were and are a matter for the police and prosecuting authorities.
"If the reviewer decides to consider police or prosecution decisions in this way, they will not examine the detail of every individual case dealt with under the scheme, but will look at a sample of cases from across the scheme."
Mr King continued: "The reviewer should investigate and form a view on whether any of the letters issued under the scheme contained errors. In this context 'errors' means the possibility that the letter contained inaccurate or misleading information, as in the Downey case.
"To investigate and form a view in respect of errors, the reviewer will not be required to examine the detail of every individual case dealt with under the scheme, but on the basis of the information obtained from such checks as are considered necessary by the reviewer, and from examination of the detail of any case produced by such checks, will report to the extent possible on whether there are errors in any of the letters sent."
Mr King said the review should also report on how any errors came to be made, including any systemic failings in the operation of the scheme.
"In examining how errors came to be made, the reviewer will not examine the detail of every individual case dealt with under the scheme, but will look at any case in which an error is found," he added.
"While it is open to the reviewer to consider the general lawfulness and/or legal effect of the scheme and the letters sent under it, the reviewer is not expected to reach a conclusion on the specific legal effect of individual letters, or any action taken or not taken as a result of the letter being sent."
Mr King said it was essential that any errors were identified as quickly as possible.
In reply, Lord Thomas thanked Mr King for the clarifications. He said Lady Justice Hallett had agreed to conduct the probe on the basis of the terms of reference outlined.
He said without the clarification by Mr King he would have been concerned that the review might not have been completed by the end of May deadline.
"If the terms had not been so clarified, then it was clear, given the many years during which the scheme has been in operation and the large number of letters written, that the review would have taken very substantially longer," he wrote.
The Lord Chief Justice said Lady Justice Hallett would make "every effort" to conduct the review by the end of May and report by the end of June.
"As an independent reviewer she will explore the issues as she sees fit, according to the terms of reference and what is possible within the time-frame agreed," he added.
Lord Thomas said he felt it was important that the correspondence between the men was made public.
"In the interests of ensuring that the parameters of her review are clear from the start, it is self evident that your letter to me, and this (my response) should be published by the review at an early stage and before any evidence is sought."
In reply, Mr King wrote: "We are all agreed that there should be early clarity as to the parameters of Dame Heather's review."