Senior Sinn Fein member John Downey walked free over IRA Hyde Park bombings in London with a ‘get out jail free letter’

IN a major report published today, the House of Commons’ Northern Ireland Affairs Committee says the “secret” administrative scheme of “comfort letters” sent to “on-the-runs” (OTRs) should never have taken place in the manner in the way it developed and run.

And the cross party group of MPs – including DUP, SDLP, Alliance, Labour and Tory – said the existence of the scheme which it claims was “pushed by Sinn Fein” has “distorted and damaged the integrity of the process of justice.

The scheme came to light last year when the Old Bailey trial of IRA Hyde Park bomb suspect John Downey collapsed when it emerged he had received a “letter of comfort” stating he was not wanted in Northern Ireland or Britain for terrorist offences.

On whether the scheme was lawful, the report states: “Whilst there is no suggestion that the scheme was actually illegal, it would be difficult to say that the scheme is unquestionably lawful in every case and this might have given an aggrieved person an opportunity to have a decision made by a Minister quashed in judicial review proceedings. Secrecy denied this opportunity.

“However, we are pleased that cases for judicial review have now been brought given the wider public understanding of the scheme.

“We are also concerned that the availability of this scheme to only one section of the community, and even then only effectively at the whim of one political party, raises questions about equality rules in Northern Ireland.”

The reports conclusions and recommendations state:

1. We urge the Government to ensure that, in future, all parties that carry out inquiries or reviews on behalf of the Government are instructed from the outset that they would be required to explain their findings to Parliament if invited to do so. (Paragraph 11)

The administrative scheme

2. It is clear that Sinn Féin pushed for OTRs to be dealt with at the highest level, and that promises were made by the Prime Minister as a result of the pressure put upon HM Government by Sinn Féin. Over the years, Tony Blair put in much effort to ensure those promises were fulfilled, but did so without telling other Northern Ireland party leaders about the exact nature of the administrative scheme. (Paragraph 47)

3. The role of the Irish Government also gives rise for concern, as the December 1999 letter highlighted that it was pushing for cases which had not even been tried in the United Kingdom courts to be completely dropped. It appears that the Irish Government was, in effect, trying to persuade HM Government to introduce an amnesty for republican terrorist suspects. (Paragraph 48)

4. We would like to see HM Government state its policy on pursuing those who were still wanted at the end of the OTR scheme including Rita O’Hare. (Paragraph 49)

Barriers

5. Without the restrictions placed upon the scheme by Lord Williams, that only the evidential, rather than the public interest test, would be considered, it is possible that many more of those on the Sinn Féin lists may have been eligible for a letter stating they were not wanted. We welcome the fact that Lord Williams intervened in this way, and consider his behaviour was an example for others. (Paragraph 54)

Did it go over and above the terms of the Belfast Agreement?

6. Even though the extradition cases were dropped, we have seen no evidence that those returning were compelled to present themselves to authorities upon their return to Northern Ireland. We believe that some were given a ‘not wanted letter’, in some cases the Royal Prerogative of Mercy (RPM) was used, and, in the cases of Maze escapees, where extradition was sought due to their escape, the public interest test was used to drop cases against them. (Paragraph 59)

7. One of the most controversial issues within the Belfast Agreement was the early release of prisoners, but at least it was publicly disclosed in the Agreement which itself was endorsed by referendum and enshrined in statute. By contrast, the administrative scheme for OTRs, also a highly controversial scheme, remained largely invisible for some 14 years. (Paragraph 61)

8. We believe the scheme was intended to go beyond the Belfast Agreement and the early release scheme, to cover further categories of republicans accused of serious terrorist acts. To this extent the public was deceived. (Paragraph 62)

9. The dropping of extradition cases resulted in some suspected terrorists having the opportunity to return to the UK, without standing trial. The dropping of the cases against the Maze escapees, using a public interest argument, also goes beyond the terms of the Belfast Agreement. Those released under the Agreement had, at least, stood trial and been convicted for the crimes they committed, whereas the Maze escapees did not face further trial for the crime of escaping prison. (Paragraph 63)

The involvement of politicians and civil servants in decision making

10. Sir Jonathan Philips, who was Director-General, Political, in the NIO from 2002, and Permanent Secretary from 2005 to 2010, told us that Officials during his time “were acting within the framework of the scheme as it had evolved since 2001.” This suggests to us that, reasonably early on in the scheme, there was at least a very loose framework in place for the role of NIO Officials. (Paragraph 67)

11. Officials in the early days of the scheme were ultimately trying to implement in good faith what was desired by Ministers. Nevertheless, there has been some suggestion that the role of Officials and the NIO blurred the principle of the separation of powers, and the public expectation that the criminal justice system should operate separately from government. (Paragraph 68)

12. The direct involvement of Secretaries of State for Northern Ireland, Officials in the political directorate in the NIO, and even No. 10 Officials, in the criminal justice process was recognised as being extraordinary by many witnesses. We understand that the circumstances after the Belfast Agreement were also extraordinary and given the lack of confidence Sinn Féin, at that point, had in the criminal justice system in NI, we recognise that an extraordinary process was required. However once Sinn Féin had signed up to support policing in NI this scheme should have reverted to more normal criminal justice processes. We also consider that the extraordinary nature of the scheme should also have required all those involved to put in place thorough processes to ensure that the identified risks of damaging the criminal justice processes were mitigated as far as possible from the start. It is greatly regrettable that this was not done. (Paragraph 75)

13. It is apparent to us that different Secretaries of State played significantly different roles in the scheme. Those who were in post at the initial stages of the scheme were very knowledgeable about it, as was Peter Hain, a long serving Secretary of State for Northern Ireland. His evidence appears to have been heavily relied upon by Judge Sweeney in the Downey judgment. Those involved later in the scheme seemed to be much less well informed about the detail of the scheme, and did not have the same role with regard to individual OTRs. This may have been because the scheme had become firmly established by the time they became the Secretary of State and it continued to be operated by NIO Officials. It was wrong the final scheme continued without the full involvement of successive Secretaries of State. (Paragraph 76)

Role of the RUC GC/PSNI in the initial scheme

14. Whilst the role being undertaken by the RUC GC/PSNI were highly unusual, the police and prosecuting authorities carried out their task with appropriate diligence during these early years of the scheme, in what were very difficult circumstances. We are very concerned by Mr Norman Baxter’s assertion of political interference in policing matters and hope it is investigated properly. (Paragraph 83)

Overall conclusions on the initial scheme

15. Whilst the scheme may not have given Sinn Féin exactly what they wanted, it was designed to go well beyond the terms of the Belfast Agreement early release scheme to cover a much wider range of people. It allowed people to return to the UK, without going through any judicial process. It also allowed prison escapees to return to the UK, without serving the remainder of their sentence or being charged with escaping from prison. (Paragraph 86)

Knowledge of the administrative scheme

16. Only with the benefit of hindsight, can it now be seen that there were several indications that an administrative scheme for OTRs was in operation, including, for example, from Ministers’ responses to Parliamentary Questions; the scheme was therefore an example of something being “hidden in plain sight”. (Paragraph 104)

17. Whilst we accept that some disclosure had been made about dealing with OTRs, these have tended to be incomplete accounts of what the scheme fully entailed. Indeed, some of the disclosures to Parliament, both in response to Parliamentary Questions, and to questions raised by our predecessor Committee, leave out some key information about how the scheme worked, and in his judgment Mr Justice Sweeney commented: “At a meeting with the [Secretary of State for Northern Ireland] in May 2001 Mr Adams expressed the view that, in terms of Republican confidence, it would be better if there was an invisible process for dealing with OTRs”. It is clear the intention was that the people of Northern Ireland and other political parties were kept in the dark about the scheme to the greatest possible extent. (Paragraph 105)

Knowledge of the letters

18. In section 8.54 of The Report of the Hallett Review, it is stated that “there was sufficient information in the public domain to alert the close observer of political affairs in Northern Ireland to the fact that some kind of process existed by which OTRs could submit their names for consideration by the police and prosecuting authorities”. We disagree. Even Owen Paterson, who had been shadow Secretary of State for Northern Ireland since 2007, told us he did not know about the scheme until he actually became Secretary of State in 2010. (Paragraph 116)

19. We have found no evidence that, beyond Sinn Féin and the NIO, anyone else knew about the precise use of letters, issued on behalf of HM Government, to alert someone as to whether they were “wanted” or “not wanted”. (Paragraph 117)

20. It is important to make clear at this point that the PSNI knew nothing about the content of the letters sent from the NIO to Sinn Féin until December 2011. This is one of the major failings of the scheme. (Paragraph 118)

21. Due to the fact that the detail of the scheme was not fully disclosed, it prevented citizens from seeking to judicially review the legality of the scheme, or the decisions made with regard to whether an individual would receive a letter or not. The criminal justice system in the UK is based around transparency with details of individuals arrested and charged being made public and trials also being open to the public. This transparency is key for public confidence in the fairness of the system. The secrecy of the administrative scheme runs counter to this need for transparency and in our view should have been fully disclosed from the start. (Paragraph 119)

Publication of names

22. A number of Members of the Committee felt that the names of those who had received letters should be published immediately, provided that publication would not prejudice any future trial and would not cause any security risk to the individual named. It was felt that naming the individuals would go some way towards restoring faith in the justice system where it may have been lost due to the way the in which the administrative scheme was run. Others on the Committee, however, felt that the names should not be published at this point. However, there was strong agreement that Operation Redfield should be carried out as quickly as possible so that a full assessment is made of the current status of those who had received letters. (Paragraph 131)

New evidence

23. The letters themselves, and subsequent statements by the PSNI and NIO, have left it unclear quite what “new evidence” would be required for a prosecution to be brought against a recipient of one of the letters. This issue is key and should have been addressed before the text of the letters was decided so that all involved were clear regarding what could and could not be considered. This issue exposes again the lack of care that was taken in designing the scheme. This is a point which needs to be clarified, particularly given the statement by the PSNI that 95 recipients of letters are potentially linked, by intelligence, to almost 300 murders. (Paragraph 141)

Sinn Féin’s reliance on the letters

24. Sinn Féin stated that it was “impossible to overstate the importance of the assurances” the letters gave. It is unclear whether this means Sinn Féin took the letters to have some legal status beyond being a simple statement of facts at the time, but it is difficult to see how the letters could have been thought to have such significance if taken purely at face value. The fact that Gerry Kelly refused our invitation to give public evidence has denied Sinn Féin the opportunity to explain what assurances they had been given by HM Government as to the status of the letters. (Paragraph 146)

New status as a consequence of the judgment

25. Whatever the intended consequences of the comfort letters that were issued, it is clear to us that the issue of a letter to Downey was the result of errors during the process. Whatever the original status of the letters, the fact that a letter was issued to Mr Downey resulted in him being able to successfully claim an abuse of process, preventing him from being prosecuted for his alleged involvement in the Hyde Park bomb. (Paragraph 151)

Withdrawal by the Secretary of State

26. The Government should set its mind to ensuring that all necessary steps are taken, including, if necessary, introducing legislation to ensure the letters have no legal effect. (Paragraph 157)

Speeding up the process

27. We consider that speeding up the process in 2007 made it more difficult for thorough and competent reviews to be carried out and, therefore, may well have made it more likely that someone would get a letter who was not supposed to. (Paragraph 166)

Terms of reference

28. Downey was born and resided in Donegal, so was not considered an OTR by DCS Norman Baxter, under the Terms of Reference for Operation Rapid. (Paragraph 189)

29. There was undoubtedly confusion over who was supposed to check whether someone was wanted by the police in England and Wales. The Terms of Reference of Operation Rapid made it clear that the PSNI were only looking at whether someone was wanted by the PSNI. (Paragraph 190)

PSNI role in Operation Rapid

30. We accept that DCS Norman Baxter and ACC Sheridan did not know about the previous scheme so, unlike Mr McGinty, they were not aware of the normal processes and the normal roles everyone played. For example, they were not aware that they should pass on information as to whether someone was wanted by the MPS. This, however, begs the question as to why the PSNI felt they had to check with the MPS whether Downey was wanted, and, in hearing that he was wanted, did not pass this information on. DCS Norman Baxter should have, at the very least, passed this information to ACC Sheridan. (Paragraph 191)

31. It is not illegal to pass the information on to another police force, so DCS Baxter was mistaken; he should have passed the information that John Downey was wanted by the MPS on to the DPP(NI). (Paragraph 192)

32. The approach to evidence during Operation Rapid is concerning, especially in light of the very large number of cases which had their status changed during DCS Baxter’s time in charge.We endorse Dame Heather Hallett’s recommendation that “The PSNI give priority in this new review of OTR cases to the 36 individuals whose status changed under Operation Rapid in 2007-08.” (Paragraph 193)

Overall conclusions on Operation Rapid

33. It is clear that Operation Rapid was put in place as Tony Blair was leaving office and it was absolutely critical that Sinn Féin signed up to the Policing Board before he left. (Paragraph 203)

34. When assessing the role of the NIO, it is important to note that Operation Rapid was completely separate to the previous administrative scheme. It had different PSNI staff, and those people in charge did not have any knowledge of the previous scheme in place. The NIO were the only party in a position to assume overall control of the scheme and ensure everyone understood what it involved. (Paragraph 204)

35. There was no overall policy and procedural control of the specific role the different bodies involved had. Most importantly, there was also no procedure in place which dealt with how to correct a mistake, and this was a serious failing of the scheme. A process should have been in place for dealing with errors. If there had been such a process when the PSNI were alerted to the Downey error in 2008 and 2009, the error could have been rectified and the letter withdrawn. (Paragraph 205)

36. We are also surprised that the wording of the letters-“the PSNI are not aware of interest in you by any other police force”-was allowed to stand. Surely, the writers of the letters should have realised that this was an incomplete assessment of a person’s status. (Paragraph 206)

37. If the PSNI had known about the entire scheme and had been involved in checking the letters sent to OTRs, it is almost certain that the Downey judgment could have been prevented. Matt Baggott, former Chief Constable of the PSNI, told us that, “with the benefit of hindsight, had we known there were letters, could there have been a bigger conversation about the implications if a mistake had been made”. We agree with this comment. (Paragraph 207)

38. The NIO should have ensured the MPS were aware of Operation Rapid and understood what it involved. The NIO were the only party in a position to do this. The mistake could also have been prevented if the MPS had been directly involved in the scheme and had been working alongside the PSNI to ensure that those on the OTR lists were not wanted by the MPS Counter Terrorism Unit. (Paragraph 208)

Operation Redfield

39. The work around OTRs was commissioned specifically by the NIO for reasons other than policing. The checks being undertaken initially by the PSNI, in relation to OTRs, were not as a result of its normal policing role; they were being carried out at the request of the NIO for political reasons. What has followed, specifically Operation Redfield, was a direct result of that piece of work being commissioned by the NIO. We believe this needs to be separated out from the wider work around historic investigations and we recommend that the NIO should commit the funds to ensure the review of the names of all those who received letters is undertaken swiftly. (Paragraph 212)

40. Whilst we are concerned that there was little crossover between the two teams, we do not think Operation Rapid impacted on the work being carried out by the HET. We agree with Dave Cox that if the HET had found new evidence, they “would not have stopped referring it to the PSNI because there was an OTR letter” (Paragraph 215)

41. With regard to Mr Downey’s case in particular, the fact that he had received an OTR letter did not prevent the HET from investigating his case and, in fact, the HET were able to highlight the result to the PSNI team. As expressed in the conclusions regarding the Downey case, this was an opportunity missed to correct the impression that Mr Downey was not wanted by the MPS and pass this information onto ACC Sheridan. (Paragraph 216)

42. We support fully the principle of revisiting murders from that period and pursuing prosecutions where the evidence allows, and it is a great pity that the parallel process to consider the cases of OTRs was incompatible with HET’s investigations. (Paragraph 217)

Lawfulness of the scheme

43. Whilst there is no suggestion that the scheme was actually illegal, it would be difficult to say that the scheme is unquestionably lawful in every case and this might have given an aggrieved person an opportunity to have a decision made by a Minister quashed in judicial review proceedings. Secrecy denied this opportunity. However, we are pleased that cases for judicial review have now been brought given the wider public understanding of the scheme. We are also concerned that the availability of this scheme to only one section of the community, and even then only effectively at the whim of one political party, raises questions about equality rules in Northern Ireland. (Paragraph 220)

Should the scheme have been devolved?

44. We believe an opportunity was missed in 2010 to inform Northern Ireland parties, other than Sinn Féin, about the scheme, as well as devolve responsibility for it. Had the scheme been devolved earlier, the scheme would have become public knowledge much earlier. Justice Minister David Ford has made it clear that a scheme like this would not have been allowed to continue under his watch. He told the Northern Ireland Assembly Justice Committee on 3 April 2014 that “there will be no such scheme in the devolved sphere while I am Minister of Justice.” (Paragraph 235)

45. Devolving the scheme would at the very least have given someone, potentially the Justice Minister himself or one of his senior Officials, the chance to take control of the scheme as a whole, and end it. The peace process in Northern Ireland was not in peril in 2010 and it would not have come tumbling down, if the OTR scheme had ended then. (Paragraph 236)

46. The status of the letters after the devolution of policing and justice should also be called into question. Given confusion and differing opinions on whether the scheme was devolved or not, we question the legitimacy of the NIO for continuing with the scheme after that point. (Paragraph 237)

The Downey error

47. 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. (Paragraph 265)

48. 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. (Paragraph 266)

49. 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. (Paragraph 267)

50. 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. (Paragraph 268)

51. 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. (Paragraph 269)

Should the case have been appealed?

52. 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. (Paragraph 277)

Further mistake

53. 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. (Paragraph 281)

54. 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 (Paragraph 282)

Use of the Royal Prerogative of Mercy

55. Having looked at all of those documents which have been made available to us, we have concluded that pre-conviction pardons were not used in relation to OTRs. (Paragraph 288)

56. We welcome the fact that the Hallett report recommended that a central register of RPMs be drawn up for Northern Ireland, and are pleased that HM Government has already accepted this recommendation, although this information will not be provided retrospectively. In the interests of transparency, and given that the names of those who received the use of the RPM are already in the public domain, however, we recommend that the Secretary of State should publish this information retrospectively. (Paragraph 296)

57. We recommend that HM Government confirm which OTRs received the RPM, as the provision of such information could not jeopardise any future prosecution of those individuals. (Paragraph 298)

58. Whilst the name of those who received a RPM have been disclosed in court cases, the Secretary of State has refused to name which of those are OTRs. We find this wholly unacceptable. (Paragraph 299)

59. Where the RPM has been used in Northern Ireland in the past, we believe HM Government should publish the names of those people, and list what they received the RPM for, and we recommend that the names of any future recipients of the RPM in Northern Ireland should be required to be published in the Belfast Gazette. (Paragraph 300)

Role in the peace process

60. We have previously noted that Sinn Féin were not getting what they wanted from the letters, which was, effectively, an amnesty. It has been suggested that the letters were only sent to those people who had the status of “not wanted”, but we find it somewhat difficult to follow the logic that Sinn Féin would have been kept on board by the NIO sending letters to not wanted people. (Paragraph 313)

61. Without being able to question Sinn Féin about exactly what assurances they thought they were being given by HM Government through these letters, we are not convinced that the OTR letters were deal breakers. It appears to us that Mr Blair was saying that it was necessary to find a solution to the OTR issue in order to keep Sinn Féin on board, and while it was too difficult to legislate for an amnesty, this scheme served as a substitute, a distraction, which kept Sinn Féin in the peace talks. However, it looks to us that the two processes became blurred. (Paragraph 314)

62. Whilst we consider that damage has undoubtedly been done to public confidence in the criminal justice system, time alone will tell if future openness and honesty will repair that damage. In addition, we expect all future UK Governments of whatever complexion will ensure that such a one-sided and secretive scheme of letters does not happen again (Paragraph 319)