On-the-runs: A grubby deal and a shambles, but not a secret
Despite what the politicians say, the administrative scheme for dealing with on-the-runs was not a secret.
Lady Justice Hallett said it was regarded as sensitive and was not the subject of extensive briefings, but she has a whole chapter listing how it had appeared in public.
This included Press articles, Dail questions and a criminal trial in which one OTR defendant, Gerry McGeough, turned out to have been explicitly told he would be arrested if he came to Northern Ireland. McGeough ignored the advice.
The origins of the controversy lie in the negotiations for the 1998 Good Friday Agreement, when it became clear that paramilitary prisoners would have to be released early as the price of peace. The question then arose over fugitives, often fleeing across the border because they had either broken out of prison or thought the UK authorities wanted to arrest them for terrorist offences.
To assess the scale of the issue, Tony Blair's negotiators allowed Sinn Fein and others to put forward names. "We had never heard of half of them," said one police officer involved in the scheme.
In other cases witnesses were no longer available or evidence had disappeared.
The original intention was to cut the numbers down as much as possible and then legislate in some way for the rest. A few were given Royal Prerogatives of Mercy (RPM) to shorten sentences, but it was decided not to use this device to remove the threat of prosecution altogether.
The Hallett review tells of one individual, referred to as 'X', who was vital to the peace process and considered for the RPM. This was probably Rita O'Hare, Sinn Fein's general secretary, who jumped bail in 1972 when charged with the attempted murder of a soldier. The idea of using the RPM to allow her home was rejected and she is still unable to visit her native Belfast.
The only attempt to legislate for OTRs was the Northern Ireland Offences Bill which collapsed in 2006. It proposed special tribunals in which convictions for Troubles-era offences would have carried no penalty. Unionists opposed it and when it became clear that rogue members of the security forces could have benefited too, Sinn Fein withdrew support.
That left the so-called 'administrative scheme' as the only show in town. It carried on largely below the radar, although statistics were occasionally released through Freedom of Information requests.
As Peter Robinson points out, the fact that it was done through letters was never specifically mentioned. It was a bit of a grubby deal – an embarrassment to Government – and there was no real policy discussion around it. Differently worded letters were issued at different times – most mentioning the possibility of arrest if new evidence came up, although others didn't.
It was a shambles, but information was still given out from time to time.
For instance on April 1, 2010, PSNI Assistant Chief Constable Drew Harris went into some detail at an open session of the Policing Board. He said that the names of the OTRs were submitted to the PSNI by the Irish and UK governments or by political parties. He later wrote to Tom Buchanan of the DUP giving figures. He said that of 218 names put forward, 173 were not wanted, eight were returned to prison and 11 remain wanted.
This is just one example. What nobody publicly anticipated was that a letter of comfort would be sent by mistake or given to the wrong person. But behind the scenes there were worries about this in the Attorney General's office and PSNI.
The inevitable then happened in the Downey case when a court released him saying he had a right to rely on the letter stating he wasn't wanted by the police. That was because he was being charged on evidence – a fingerprint – which was available when the letter was written.
If it had been new evidence then the letter would have been no use to him.
The scheme was closed at the end of 2012, but it remains a ticking time bomb and the process of reviewing all the letters for errors is, Justice Hallett warned, likely to take years.
How they responded:
Theresa Villiers, Secretary of State:
“The Government has always been clear that if sufficient evidence emerges then individual OTRs are liable for arrest and prosecution in the normal way. So I repeat again today to those holding these letters, they will not protect you. As far as this Government is concerned, this scheme is over.”
Chris Daly, brother of Hyde Park victim Lt Anthony Daly:
“The pain never goes away following such an atrocity. But you need to come to terms with that because life goes on. A catastrophic mistake was made and that mistake can’t be undone. I don’t think it would help anybody by getting angry in an interview or even with people direct.”
Peter Robinson, First Minister:
“There is a heavy criticism of the Northern Ireland Office for the systematic failures in the system and leads to the conclusion that it was wrong in principle and shambolic in practice. The shambolic nature is seen in the lack of coherent procedures from the Northern Ireland Office and police in how they carried out this role.”
David Ford, Justice Minister:
“Lady Justice Hallett correctly describes the administrative scheme as ‘flawed’ and this is what has damaged public confidence in the justice system. I am seeking assurances from the Secretary of State, the Public Prosecution Service and the PSNI that no element of the scheme still exists.”
Gerry Kelly, Sinn Fein MLA:
“Judge Hallett has said clearly that the process was lawful. The two governments made commitments to deal with the anamoly of the issue of the on-the-runs in the wake of the Early Release Scheme under the Good Friday Agreement. We expect the governments to live up to those political commitments.”
Ivan Lewis, Shadow Secretary of State:
“Today’s report reinforces the urgent need for a robust, transparent and comprehensive process to deal with Northern Ireland’s past. The UK and Irish governments must take a far more hands-on role in supporting local political parties to reach agreement on the past and parades.”
Mike Nesbitt, UUP leader:
“Lady Justice Hallett makes clear that any lack of clarity or transparency is the fault of the UK Government, again confirming the Government’s priority was to keep Sinn Fein happy even it meant bringing forward a scheme that lacked any form of transparency, accountability or balance.”
Alasdair McDonnell, SDLP leader:
“Justice Hallett confirms the deep flaws in the OTR scheme as it had no structure, no policy and no risk assessment. We have neglected to deal honestly with the past. The legacy of the past hangs over us like a massive Alpine glacier and if we fail to deal with it bits will continue to break off and cause hurt.”