On-the-runs scheme "questionably unlawful" and "distorted legal process"

27 Mar 2015 12:27 PM

In a major report published recently, the House of Commons' Northern Ireland Affairs Committee says the administrative scheme of "comfort letters" sent to "on-the-runs" (OTRs) should never have taken place in the manner in which it was developed and run, and its existence has distorted the process of justice.

• Report: The administrative scheme for "on-the-runs"
• Report: The administrative scheme for "on-the-runs" (PDF)
• Inquiry: Administrative scheme for "on-the-runs"
• Northern Ireland Affairs Committee

The Committee announced its inquiry into the scheme after the Government appointed its own inquiry led by Dame Heather Hallett. The Committee was concerned that the Government's inquiry was too narrow in its remit, and also that it was not going to be conducted in public.

Committee's conclusions

The Committee concludes:

• The scheme should never have taken place in the manner in which it was developed and run.
• It is questionable whether the "on-the-runs" scheme was lawful or not, but its existence distorted the legal process.
• If it existed at all, it should have been formalised within the various agencies involved with clear lines of reporting and accountabilities, and made public.
• 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.
• The judgment in the Downey case served to highlight the inherent risk in the design and subsequent operation of the scheme, and it is regrettable that neither the Judge nor the prosecution sought witness statements on the nature of the OTR scheme from other parties.
• The refusal of leave to appeal to remove the stay put on the Downey trial placed the balance in favour of preserving the integrity of the criminal justice system over the public interest involved in continuing the trial of someone accused of carrying out multiple murders. The Committee believes the integrity of the criminal justice system, and part of HM Government, has been damaged by the stay.
• The Secretary of State’s refusal to name which of those recipients of the Royal Prerogative of Mercy are OTRs wholly unacceptable.
• There was a difficult peace process going on at the time, but there must still be transparency and accountability in government and in the legal process. A more open process could have prevented the letter being sent to Mr John Downey.
• 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.
• The wording of the letters–"the PSNI are not aware of interest in you by any other police force" should not have been allowed to stand: the writers of the letters should have realised that this was an incomplete assessment of a person's status.
• The status of the letters after the devolution of policing and justice should be called into question. Given differing opinions on whether the scheme was devolved or not, the legitimacy of the NIO continuing with the scheme after that point is questionable.
• 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.  This needs to be separated out from the wider work around historic investigations and the NIO should commit the funds to ensure the review of the names of all those who received letters is undertaken swiftly.
• The secrecy of the scheme also meant that aggrieved person has been denied the opportunity to have a decision made by a Minister quashed in judicial review proceedings.
• 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 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. This issue exposes again the lack of care that was taken in designing the scheme.
• This must be clarified, particularly as the PSNI believes that 95 recipients of letters are potentially linked, by intelligence, to almost 300 murders and indeed that the Metropolitan Police wished to speak to some of them. HM Government must provide the resources to enable the police to reassess these cases quickly.
• 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.

Chair's comments

Laurence Robertson MP, Chair of the Committee, said:

"Our priority is to serve the victims and their relatives, whom we believe to have been let down by HM Government by the way in which this scheme has operated.

If any scheme had been put in place at all, which is questionable, it should have been properly introduced and correctly administered. It also should have been open and transparent. This scheme was none of those things.

Regardless of the intentions, this scheme has caused further hurt to people who have suffered far too much already, and has led to further suspicions being raised. It is therefore very important that Operation Redfield is concluded as quickly as possible and that the government ensures that no letter provides a shield from prosecution ever again. That is the least people can expect, and is the minimum our Committee requires."

Further information

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