Oral evidence: Administrative scheme for ‘on-the-runs’, HC 1194Wednesday 30 April 2014
Oral evidence, 30 April 2014.
Witness
Kevin McGinty CBE, Director of Criminal Law and Deputy Head, Attorney General’s Office, gave evidence[6].
Chair
We will move straight on. I do apologise for the delay, Mr McGinty. Thank you very much for joining us. Perhaps I can ask you to introduce the subject as far as you can see it. The submission you gave us was very, very useful. You seem to take the issue back to early 1998 and “Ms X”, as you refer to the person, as being the start of what became an administrative scheme. Is that correct?
Kevin McGinty
I think so.
Chair
Perhaps you could talk us through that.
Kevin McGinty
I only went back to the Attorney General’s Office in December 1997, so this process had started and I was not involved at the very start. My understanding was that at about that time it was a very difficult stage in the negotiations; Sinn Fein were being very difficult; and the then Secretary of State, Mo Mowlam, came to the then Attorney General, John Morris, and said, “Look, there is this person who now works for Sinn Fein. She is playing a very important role within the peace process; she is a great supporter of the peace process. Would you say that in respect of those charges for which she is currently wanted the public interest is still in favour of her prosecution?” As I tried to explain in the note, in order to be prosecuted you need to meet both stages of the test.
Ian Paisley
Mr Chairman, could I just say for clarity: we are speaking about Rita O’Hare here. Is that not correct? Let us be absolutely clear: we are speaking about Rita O’Hare.
Chair
I am not sure if it is relevant to my question. We perhaps can get on to that, but if we could just follow the process.
Ian Paisley
It is relevant for us, Mr Chairman. If this is the genesis of the process, let us know exactly whom we are talking about. There are three individuals whom we are talking about, and Rita O’Hare appears to be the one. It is clear you are talking about Rita O’Hare.
Chair
Alright. The note says, from memory, she faced charges of attempted murder and causing grievous bodily harm with intent, so we are talking about very serious charges.
Kevin McGinty
Very serious charges. She absconded while she was in hospital—she had been injured herself. She went to the south. We sought her extradition from Dublin. She used the political defence, whereby she had to explain what it was that she had done, but the extradition was unsuccessful. As I say, when Mo Mowlam came to the Attorney, she asked whether he thought, in light of the events that had happened since then and her role in the peace process, the public interest would still favour her prosecution. That Attorney did not have to decide that issue at that time, because things moved on and it did not seem to be as key an issue as it was when she first came to the Attorney, but it arose again the next year and, again, she went to the then Attorney General, Lord Williams, to ask the same question. He took the view, and discussed it with the then Director of Public Prosecutions, Alasdair Fraser—as he then was—and the Director said, “Look, before we give any consideration at all to the public interest, I want to be sure that the first part of the test is met: that the evidential stage of the test is met.” That was in relation to her and one or two others—I cannot remember off‑hand, and I genuinely cannot remember their names. The Attorney agreed that the Director should do that and started that process. He also carried out a Shawcross exercise whereby he asked fellow Ministers whether there were any factors relevant to his and the Director’s assessment of the public interest that they might not otherwise be aware of that they should take into account. That is, essentially, “You tell me what role she is playing in the peace process and how important it is” in this particular case. In respect of the work that the Director then did with the RUC in checking the evidence, they came to the conclusion, in relation to two of those individuals, that the evidential test was no longer met and, in fact, if they returned to Northern Ireland, they would not have been arrested and they would not have been prosecuted. This is compressing the process a lot, because, as far as consideration of the public interest was concerned, it took a long time, but eventually Lord Williams and the Director considered that the public interest was still in favour of prosecuting that one individual. They could not say that the benefit to the peace process was sufficiently clear to be able to allow them to reach that decision. It seems to me that that was probably the best bet as far as Sinn Fein was concerned in putting forward an individual whereby the public interest may not be in favour of prosecution, and if it was unsuccessful for her it was probably unlikely to be successful for anyone else. Therefore, I think at that stage Government realised that the answer to what they described as the “anomaly” of on-the-runs was not going to be sorted out by the prosecution applying the public interest to come to conclusions that, because of the peace process, they no longer needed prosecuting, so they were left in the position whereby they had to consider the evidential stage in relation to each individual. I may have got the timing slightly wrong, and it differs slightly in the judgment that Nigel Sweeney gave, but it was at about that time that we then got the first tranche of names for on-the-runs. It was about 35, possibly 36, and I have to say it was not something that anybody welcomed.
Chair
You go on to say, “In the first of my statements for the Downey abuse hearing I explained that the prosecuting authorities ‘accepted the OTR administrative scheme with some reluctance’”. They were leant on, basically.
Kevin McGinty
Let us make this clear. The prosecutors act independently of Government. The police act independently of Government. That does not mean that Government does not have a proper interest in what prosecutors and the police do. At the end of the day, it is the Government that is responsible to the people for the maintenance of law and order. It is the Government that gets voted out, not the prosecutors and not the police. Therefore, the Government has a proper interest in what the police or prosecutors may be doing. What they cannot do is say to the police, “You should arrest this person” or “You should not arrest this person”. They cannot say to the prosecutor, “You should prosecute” or “You should not prosecute this individual”. They can say, for instance, “I think you, the police, ought to concentrate on getting muggers, because that is a particular problem in this particular area”, and the police need to take account of what the Government say in those circumstances and direct a little more attention to muggers. In this case, we had politicians who were involved in the negotiations for a settlement in Northern Ireland, and the Government that was carrying out those negotiations said: “Look, we have this problem with on-the-runs. You have told us you cannot deal with this by way of public interest.” I should say that successive Attorneys General made it very clear in a series of letters that the prosecution process could never give an answer to the problem of on-the-runs and that to do the process that they asked us to do, which was to check the evidential status of each of these individuals, would damage the criminal justice system. Nevertheless, they asked us to do it. The prosecutor is sometimes in a position whereby he or she is asked to do something that does damage the justice system or the prosecution system, but they have to balance that against the wider public interest. I can give you an example. If, for instance, in a trial it suddenly becomes clear that there was an informant and to continue with the trial would mean that the identity of that informant becomes public knowledge and that therefore the informant may be at risk of death or serious injury, then the prosecutor has to balance the public interest in stopping the trial against someone who may have committed very serious criminal offences, or continuing the trial and taking the risk that the informant is identified and killed—not that unusual, unfortunately, in Northern Ireland at certain times.
Chair
Is it correct to say that the first, Ms X, was considered and then, as you go on to say, the DPP did not expect further names to follow? Did this whole thing, then, take on a life of its own, which is not normal under the normal way of working? If the police in Gloucestershire have an interest in somebody, they do not consult the Conservatives or any other political party. It is very, very unusual and, in fact, some might say illegal to do so.
Kevin McGinty
I would not say it was illegal to do so. I would certainly agree it is very unusual.
Chair
The police would be very reluctant. We have all, probably, given evidence about certain people. The police would not tell me anything. If they were asking me questions, they would not tell me what they were looking at. This is very unusual.
Kevin McGinty
It was unusual. I do not dispute that.
Ian Paisley
It is good to see you here, Mr McGinty. I appreciate it. I found the written material that you sent us incredibly helpful in outlining the genesis of this process. My interest in understanding those three names is because it comes right at the very beginning; in your view—and, indeed, in your words—this is how it started.
Kevin McGinty
That is my belief.
Ian Paisley
Yes. So therefore, knowing that it was about Rita O’Hare and these two others—you say you do not know those other two names; you have forgotten them.
Kevin McGinty
I do not have them to hand.
Kate Hoey
They are not famous.
Ian Paisley
Well, they are infamous.
Kevin McGinty
These are people who could not have been prosecuted for anything.
Ian Paisley
Yes. But knowing those names, that was the genesis of the case and gave rise to the OTR process. As a matter of fact, did Rita O’Hare ever receive a letter?
Kevin McGinty
The individual I mentioned has never received a letter.
Ian Paisley
She has never received a letter because the evidence is so strong against her.
Kevin McGinty
I did not say that the evidence is strong, but the evidential test, the last I heard, was still met.
Ian Paisley
The two other individuals being told that there was not sufficient evidence to prosecute them prompted 36 more names to come forward in and around 2000. I am quoting your words. This was not welcomed by the Attorney General.” Was Number 10 informed formally by the Attorney General’s Office that this was an unwelcome development?
Kevin McGinty
The names came through Number 10. At that stage, negotiations with Sinn Fein were being carried out by Number 10, working with the Northern Ireland Office. From memory, the letters that went off to the two individuals who could no longer be prosecuted were drafted by the Attorney’s Office and they were sent by Jonathan Powell. At that stage, Number 10 was still in the lead.
Ian Paisley
They were taking the lead.
Kevin McGinty
As they were taking the lead in the negotiations with Sinn Fein in the peace process at that time.
Ian Paisley
Yes, but the phrase I am interested in is, whenever Number 10 informed the Attorney General’s Office that there were another 36 names brought forward, you say this was an unwelcome development. Was Number 10 informed by the AG, “This is not on”?
Kevin McGinty
Yes. Not that it was not on, because we were prepared to do it, but the Attorney—as did subsequent Attorneys on other occasions—made clear two things. First of all: “This can never be the answer that you are looking for in relation to what you describe as the anomaly of on-the-runs, because at the very best all it can do is identify individuals who would never have been prosecuted if they returned to Northern Ireland anyway”. Secondly: “It is a process that is potentially damaging to the criminal justice process”, for the reasons I set out in my first statement.
Ian Paisley
Do you not think it is more than that—it is so deeply flawed it turns justice on its head? You cite a very interesting document, DB 525-527, Flag 6[7], from which you quote, “The CJ system was simply not designed for the task we were asking of it”.
Kevin McGinty
It was not, for the very reason that the Chairman said. This was a very unusual process. Was it unlawful? No.
Ian Paisley
So the rule of law was turned on its head, essentially.
Kevin McGinty
It is one way of describing it. It was not a normal process. It is not a normal process to assess evidence in the absence of the individual, and it is not normal to tell people whether they are wanted or not wanted.
Ian Paisley
You go further, and you make three very distinct and powerful arguments as to why the process was so deeply flawed. You say that the impartiality of the prosecutor was called into question and public confidence could ultimately be damaged; that the benefit was all one-sided—it was all to the Republicans—and that the assessment of the evidence was made in the absence of the accused, and ultimately there is then the issue of, “Are we tipping someone off?” It is so deeply flawed. You set out a very powerful argument that this was unjust. Do you agree with me?
Kevin McGinty
No, it was not unjust. It was damaging to the criminal justice system. Alasdair Fraser, who a number of you here know, spent his life trying to ensure that the cases that came before him in Northern Ireland were dealt with in an absolutely even-handed approach, to the extent that he made all parties in Northern Ireland unhappy at one stage or another because of the decisions that he reached. This system was partial, in the sense that whereas it could have applied to Loyalists, as Hugh Orde said, and we would have looked at those in exactly the same way, Loyalists did not go to the Republic of Ireland; they went to Scotland and we could get them out of Scotland.
Ian Paisley
You mentioned Sir Alasdair Fraser. He has been held up as a paragon of virtue, and I agree with that, knowing the gentleman before he was deceased. You mention him in your statement in these terms. You say that, in May 2000, the Director of Public Prosecutions for Northern Ireland sought a public statement to be made about this process. Was that statement ever made?
Kevin McGinty
No, I do not believe so.
Ian Paisley
Tell us why that statement was never made.
Kevin McGinty
There was no secrecy in this on the part of the prosecution or, indeed, the police, as you have heard. Certainly an awful lot of people knew about it in what was a small legal world. We would get advice, for instance, from independent members of the Bar. A number of people knew the process was going on. I did not know at the time, but it was not, as I understand, fed into the political process—it was not fed into the negotiations—but that was a matter for those involved in the negotiations, not for the prosecutors.
Ian Paisley
But let us be very clear. Sir Alasdair Fraser was not only a paragon of virtue and a very senior individual; he was right at the top of the food chain. He was one of the bosses, essentially. He was saying, “I want a public statement made about this”. Who overruled him? Who said, “We are keeping this under wraps”?
Kevin McGinty
From memory, the Attorney General also wrote to the Secretary of State or to the Prime Minister, saying: “Look, if you are continuing this, you ought to consider making a public statement”.
Ian Paisley
And they, then, would have come back and said, “No, we are keeping mum on this”.
Kevin McGinty
I do not think at any stage there would have been a “no”. It would probably simply not have happened. It was a fast-moving thing at the time, as you know, and there were a succession of crisis talks.
Ian Paisley
It was not fast-moving at one point, because the Director was so fastidious, in that he combed through every single piece of potential evidence, but this got on the nerves of the Shinners. It got so much on their nerves that they then went to Number 10 and, according to the written evidence you have produced, which, again, as I say, is very helpful, the process was slow, and pressure was on Number 10 from Sinn Fein. Did Number 10 then respond to that pressure by pressurising the prosecuting authority and saying, “Get the finger out here. Sort this out. We are under pressure from Sinn Fein”?
Kevin McGinty
There was always pressure to deal with the process as quickly as possible. That is not improper. There was never any pressure to reach any particular decision in relation to each individual.
Ian Paisley
Right. But the pressure was on: “Sort this out”.
Kevin McGinty
It is proper for Government, on occasions, to put pressure on prosecutors to speed the process up.
Ian Paisley
The wheels of justice turn slowly but they grind exceedingly fine. The essence of that is slowness, because they have to go through the process.
Kevin McGinty
Absolutely. You know Alasdair, and you know Alasdair, as well as being a person of the highest integrity, was also one of the most difficult, obstinate men you could deal with. He would not be pressurised into doing anything that he thought was improper. He was determined, as was the Attorney, who supported him, that “this work, if it is to be done, it is to be done as well as it possibly can be”, because we did not want to increase the risks by making mistakes.
Ian Paisley
As a result of his determination—
Kevin McGinty
And the Attorney’s.
Ian Paisley
Yes. The process changed, then, did it not? It then was taken away from that type of process, because this was so rigorous and it probably was not going to produce the results that certain political parties wanted.
Kevin McGinty
No, I do not think it did change. There were always questions about whether this process could be speeded up, and I provided you with some correspondence, which perhaps suggested a way of speeding the process up by taking the prosecution process out of it and simply asking the police whether or not these individuals were wanted. The Director said, “I do not think that is going to speed the process up and I would not be happy doing it”, so it continued on in the same way as before—that is, with a rigorous check made by both the police and the prosecutors as to whether or not the evidential test was met or—
Ian Paisley
Do you think this verged on the margin of corrupt?
Kevin McGinty
No.
Ian Paisley
Seriously?
Kevin McGinty
Seriously.
Ian Paisley
After all the flaws? The fact that the Director is really wrestling with himself to play this role; you have internal memos sent from the Northern Ireland Office saying the criminal justice system is not built for this. Do you not think it was corrupt?
Kevin McGinty
No.
Ian Paisley
Pressure was coming from Downing Street; pressure from the IRA, from Sinn Fein.
Kevin McGinty
There is always pressure from Governments in relation to certain aspects of both policing and prosecution. That, as I say, is proper, depending how far it goes.
Ian Paisley
I have characterised it as corrupt. How would you characterise it? It is not good practice.
Kevin McGinty
It was unusual—very unusual. It would not have happened, I suspect, anywhere other than Northern Ireland, but at that stage Northern Ireland was a unique place at a unique moment in time.
Ian Paisley
But at that time Northern Ireland had a peace agreement. An Assembly had been established, and this was still going on.
Kevin McGinty
There were still blips, as you will remember. You had to return to direct rule after a particularly notorious case collapsed. You did not get devolution of justice and policing, which was, in a sense, the cherry on the cake—I do not mean in any rude way—until May 2010. Even now, there is still the occasional blip.
Ian Paisley
“Unusual” is the best you can do, in terms of your characterisation.
Kevin McGinty
I would not accept a description of “corrupt” for anything that involved either any of the Attorneys that I worked for, the Director that I worked for, or, indeed the two Chief Constables I worked for.
Ian Paisley
Let me turn it round this way. Do you think we—“we” collectively; Government—were right to do this?
Kevin McGinty
I do not know. That is a political question. These were negotiations. I do not know. You are politicians; you can make a better assessment than I can. I do not know whether the process would have continued without this. We were told that it was necessary. You judge it. I do not know what the answer to that is.
Ian Paisley
Rita O’Hare was so central to the process, but she did not get a letter and the process continued. Sinn Fein bowed the knee, went into Government and administered British law.
Kevin McGinty
That individual did not get a letter because the system was working properly. No one was going to get a letter unless the Director and the Attorney were satisfied that that person could not be prosecuted if that person returned to the jurisdiction at that moment in time.
Andrew Percy
So Rita O’Hare is still eligible for arrest in the United Kingdom.
Kevin McGinty
Please do not press me to identify the person; it is not for me to do that. The individual I was talking about, as far as I am aware, has not been told she can return.
Andrew Percy
This individual, who may or may not be Rita O’Hare, cannot be extradited from southern Ireland. If she enters a different jurisdiction—not the United Kingdom, but elsewhere in Europe or the United States, for example—what is the position with regards to the British authorities seeking arrest then?
Kevin McGinty
We could seek her arrest and extradition.
Andrew Percy
Thank you. You did not describe it as legally corrupt. Do you think the process that was established was morally corrupt?
Kevin McGinty
No.
Andrew Percy
At the time, what was the legal basis and legislative basis, so far as any existed, that you understood this was operating under?
Kevin McGinty
I have heard that question asked on a number of occasions. It is slightly misleading. I do not mean to be clever about it, but what is not unlawful is lawful. You do not necessarily need a statutory power to be able to do something. If it is not unlawful to do something, you can do it.
Andrew Percy
At the time, were questions asked? Were there dissenters within? Did anybody give clear advice saying that, “Actually, this probably is not lawful. This is not legal. This is not right”?
Kevin McGinty
It was lawful. It was not unlawful. It was, we were told, a necessary process.
Andrew Percy
So, if any other political party wrote with a list of names seeking the status of those individuals, that is entirely lawful. Would that be dealt with in the same way?
Kevin McGinty
Had it happened in Northern Ireland at that time, probably yes. If it happened here, no.
Andrew Percy
Why? Are we not all equal before the law?
Kevin McGinty
I am not saying it is unlegal or illegal. It was an unusual process that the prosecutor would not normally do. It was taking this step because of the unusual circumstances in Northern Ireland; the prosecutor and the police were being asked to do it by those involved in the negotiations in the peace process in Northern Ireland. It is a uniquely Northern Ireland issue.
Andrew Percy
And the best way in which this can be described is “unusual”.
Kevin McGinty
I am not going to describe it as corrupt.
Andrew Percy
So, “unusual”.
Kevin McGinty
Not normal. There are a number of other ways to describe it.
Chair
When the first test of the likelihood of securing a prosecution is passed, so you go on to the next test, the public interest, again, it would not be normal for political considerations to form part of that, or would it?
Kevin McGinty
They could. They probably would not be terribly strong, but it is at least arguable to say that if the whole continuation of the peace process in Northern Ireland was dependent on an individual coming back to Northern Ireland and the prosecutors believed that there was strong evidence to accept that view, then, potentially, rather than allow the whole thing to go down the plughole, it might be better to say, “Fair enough. The public interest is not in favour of the prosecution of that individual.” But the more serious the charges, the more likely it is that the public interest is in favour of prosecution, for all the reasons that everyone here would understand.
Chair
In 1998, there was legislation going through here with some very difficult things to accept—some of us did not accept them—such as the early release of prisoners. Yet, at that very time, the then Secretary of State asked the Attorney General to consider whether this woman should be given one of these letters on the basis of political considerations. Given what was going through the House at that time, that is an extraordinary thing for a politician to do, surely.
Kevin McGinty
That is something you must ask politicians.
Chair
I will. But from a legal position—
Kevin McGinty
What was going through the House at the time was about people who had already been convicted of offences. This person had not been convicted of an offence. It depends what you describe as “political”. I am not going to argue with you. What they were told was, “Look, for the peace process to continue and for Sinn Fein to remain in these negotiations, you must allow this person to come back”.
Chair
As Ian points out, that was wrong, was it not, because it continued without that—
Kevin McGinty
It was not wrong for them to make that.
Chair
No, but it was a wrong assertion to make, obviously.
Kevin McGinty
It was not accepted by the prosecutor, and as things happened it did not collapse.
Oliver Colvile
Forgive me, Mr McGinty. We in this country have a great tendency to say that we think—rightly so—that other countries should have an independent police force and should also have a judicial system that is beyond reproach. We are very proud of that in this country. It appears from what you are saying to me that there were moves by Number 10 to try to—I do not want to use this word; I will use the expression, but I mean it in a particular way—pervert the course of justice. I have real difficulty with that. At the end of the day, if people are caught for doing criminal things, they should be prosecuted and should be brought to trial, and they should answer in a court of law about that. It just seems to my mind that what you are suggesting is that there were moves within Number 10 to try to out-manoeuvre the whole of that process: “We will have our hands behind our back and we will just hope it is not going to come out eventually”.
Kevin McGinty
Number 10, as far as I was aware, always accepted the independence of the prosecutor. They may make representations, but the decision at the end of the day is one for the prosecutor, taken independently. That is what we are proud of. That is what gives us an independent prosecution process.
Oliver Colvile
But by writing the letters, they cut across all of that, which is evidently the case because the judge has thrown out the Downey case.
Kevin McGinty
The judge did not throw out the Downey case because Downey had been sent a letter.
David Simpson
No. It was the political influence.
Kevin McGinty
No. It was not that. The judge threw out the case because the letter that Downey had been sent and that he acted upon to his detriment—that is the way it is described—was wrong and the state knew, at all times, that it was wrong. That, I hope, is unique to Downey.
Chair
I am not quite sure that analysis is correct, but can we continue with the questions?
David Simpson
You may not describe it as being “corrupt”, but when we received evidence from Norman Baxter, he gave us an instance where they had arrested two known terrorists who were wanted for very serious crimes, one of them being an attempted murder and wounding of a soldier. Gerry Adams complained to Number 10; Number 10 rang the PSNI—or the RUC at that stage—to release them. They were interfering in justice. There was a corruptness there, whether you want to describe it or not. Number 10 were getting involved.
Kevin McGinty
If Number 10 did that, I would agree with you that was absolutely wrong and was corrupt.
David Simpson
Absolutely. That is the evidence given by Mr Baxter, and he is coming back to the Committee—
Kevin McGinty
It was not accepted by Hugh Orde.
David Simpson
You have heard what Ronnie Flanagan said today: that at the very heart of all of this the victims were important to him; he visited many homes, and all of those things. Those of us from Northern Ireland and maybe some from the mainland who have been affected by the Troubles and those who have had family members murdered are important to us. What has grieved us through this whole process is the fact that those victims probably will never see justice because of this. That is the bottom line in all of this. Whether it was done for a political purpose or not, they will not see justice. We heard Ronnie Flanagan say that he knew nothing about these letters that went out; other officers have come before us and said they knew nothing about them. In your experience and your position, would you not find it strange that if those letters would have been issued to whoever was on the run, they would not have been run past the Chief Constables or some senior officers within the RUC to clarify or verify them in any way?
Kevin McGinty
Can I try to deal with the three points you raised in the order you raised them? If Number 10 rang up and said, “We have had Gerry Kelly on”—well, if they had said that or not—
David Simpson
It was Gerry Adams, seemingly, yes.
Kevin McGinty
If they simply said, “You have got two people; release them,” they cannot do that. That is wrong. I do not expect they did do that. What they might have done, which would not be so unusual, would be to say, “Look, you have arrested these two people. What can you tell us about it?”
David Simpson
Hansard will be able to clarify, but, Mr McGinty, that would be a play with words, would it not?
Chair
As well as that, I would suggest that is bordering on illegal.
David Simpson
Absolutely.
Chair
What level of Government do you have to be at to ask the police to give you that information? Could anybody round this table get that information? Of course not.
Kevin McGinty
You may do.
Chair
Please; that is totally incorrect.
Kevin McGinty
Every MP is entitled to write to the prosecutor, and every MP usually does. He is usually given more information about a case than a member of the public would be.
Chair
I would dispute that. David.
Kevin McGinty
Can I go on to answer the second question?
David Simpson
You can tie the last question into your answer. As well as the letters, could you also give us your understanding of royal pardons and royal prerogatives, and where they are used—
Kevin McGinty
I cannot give you that, because we were not involved in that at all.
David Simpson
There were 18 issued, we understand.
Kevin McGinty
That was something that the Attorney was not involved in.
Kate Hoey
Who was involved? Who made those decisions on the royal prerogative?
Kevin McGinty
As far as I understand, it was the Northern Ireland Office.
Kate Hoey
The Secretary of State?
Kevin McGinty
Yes.
Kate Hoey
The Prime Minister?
Kevin McGinty
Possibly.
David Simpson
That is fine. If you could deal with the other point, then, just on the letters.
Kevin McGinty
You say because of the system, victims would never see justice. The whole point of this scheme, as it was operated and accepted to be operated by the police and the prosecution, and the reason why so much care was taken over it and why it took so long, was because every single effort was made to ensure that we were trying only to identify those cases where an individual, if they did come back, would have not have been prosecuted anyway. If these individuals had come back, they would not have been arrested; they would not have been prosecuted. No one ever asked us to—and no one would ever have done it—suggest to an individual, “Forget it. We are not going to prosecute you because it is not in the public interest any longer.” That did not happen.
David Simpson
That is your interpretation. Those of us from Northern Ireland know what those in political life today did, what they were in charge of, and what orders they gave. There have been no prosecutions so far against them, unless they were some of the recipients of the royal pardon, which we do not know.
Kevin McGinty
All I can talk about, Mr Simpson, is the cases that I was aware of.
David Simpson
Yes, and I appreciate that. I know the position you are in, but we live in Northern Ireland, so we know the shenanigans that did go on in order to—
Kevin McGinty
You would also know that Alasdair Fraser would not have taken part in that.
David Simpson
Yes, I appreciate that.
Lady Hermon
Thank you again, Mr McGinty. You are regarded as a key witness. We are very pleased to have you willingly coming in and being so open and frank with the Committee. Whether we like what you are saying or not is a different matter.
Kevin McGinty
I am not sure the “willing” bit was—
Lady Hermon
No, we are very pleased to have you here this afternoon, and I appreciate the fact that you changed order with Sir Ronnie as well. I have a number of questions I would like to ask you. You made a very interesting comment. You have made many interesting comments, but the one that I am particularly interested in at this stage is what you regard as the legal status of the administrative letters that have been issued post the Downey judgment. You were very careful in summing up the Downey judgment about the detriment that might have been suffered by Mr Downey. In your view, as a very experienced and highly respected and regarded lawyer, what is the legal status of the other letters?
Kevin McGinty
No letters, as I understand it, have been issued post Downey’s arrest. I do not think you mean that. You mean, post Downey, what is the legal effect of the letters that are out there.
Lady Hermon
No. Downey’s letter was sent on 20 July 2007. I mean post the Downey judgment. Sorry. My reference to Downey is shorthand for saying: what is the legal status of the others since the judgment by Mr Justice Sweeney?
Kevin McGinty
If any other letter has gone out that fits the same facts as Downey in that it is not only wrong but it is known to be wrong by the authorities, then I think we will face the same position that we did with Downey and we would not get past an abuse-of-process argument.
Lady Hermon
It would not get past.
Kevin McGinty
If we knew the letter and the assurance to be wrong.
Lady Hermon
Let us look at the letters that have been received. The letters that have been received have, therefore, in effect, been an amnesty.
Kevin McGinty
No, I do not think so.
Lady Hermon
You do not think so.
Kevin McGinty
No. The letters that were sent out were designed to state the position at a point of time—at the point that the letter was sent. As other witnesses have explained, that is on the basis of the evidence that was then available. If fresh evidence became available, then there would be no bar to prosecuting that individual. There would inevitably be an abuse-of-process argument, but we would survive that because we would be able to show that since that letter had been sent, new evidence had come to light.
Lady Hermon
You will know from the evidence that was given to this Committee by Mr Sheridan[8], formerly an Assistant Chief Constable of the PSNI—and indeed he served with the Royal Ulster Constabulary—that he believed that the letter that had been sent by the PSNI had been altered. In fact, Mr Baxter might have suggested also that the letter was altered.
Kevin McGinty
It was.
Lady Hermon
It was. You are confirming that the letter was altered.
Kevin McGinty
Yes.
Lady Hermon
Who altered his letter, and why?
Kevin McGinty
It was altered by the Northern Ireland Office.
Lady Hermon
Altered by the Northern Ireland Office. After it had gone through the process? Just describe that process. Mr Sheridan’s letter leaves police headquarters.
Kevin McGinty
Okay. By the time that the Downey letter came, the process had been operating for about six years. My understanding was that everyone knew their particular roles. The police would check whether anyone was wanted for arrest. They would check not only whether anyone was wanted for arrest in Northern Ireland but also whether they were wanted for arrest by any other force within the United Kingdom. If they were aware of any file having been sent to the DPP, or indeed even if they were not, once they had gone through that process it would go to the DPP’s office. The DPP would find out whether or not there was any file. If there was a file, they would consider whether or not the test for prosecution could still be met in relation to that individual, and a large number of checks were made. The point of the whole OTR system was to be able to say to the individual, if it was right, that, “You are free to come back to the United Kingdom without fear of arrest or prosecution based on the evidence that is currently available”.
Lady Hermon
Was it to the United Kingdom, or was it to Northern Ireland?
Kevin McGinty
It was always to the United Kingdom. There is no sensible idea of being able to come back to Northern Ireland if you were wanted in London, because you would be arrested in Northern Ireland. Whether it was because of the setting-up of Operation Rapid or whether it was because the officers in the Downey case were not familiar with what had gone on before, the way in which they wrote to the Director, who was Roy Junkin, I think, at that stage—he was Acting Director—was in slightly different terms, because it said “not wanted by the PSNI”. Previously, what they had written had been broader than that: “or any other force within the United Kingdom”. To get that response was slightly odd, because it did not mean anything, because, as I said, even if you were wanted not by the PSNI but by the Met, you would be arrested. As I put in some of the papers I sent to you, the Northern Ireland Office, I think prompted by the Attorney’s Office, went back the PSNI and said, “Are you sure you have checked that these individuals are not wanted by any other force within the United Kingdom?” and Mr Sheridan said, “Yes, those checks that have always been done were done”. That was then followed up by another email by the Northern Ireland Office saying, “Are you sure these checks have been done?” and, again, the response was, “Yes, refer back to Mr Sheridan’s letter. These checks were done.” On that basis, the formulation used by the Northern Ireland Office in the past—i.e. that, “Not only are you not wanted in Northern Ireland, but nor by any other force”—would have been correct, which is why they wrote it in the form that they did.
Lady Hermon
So, it was altered by the Northern Ireland Office. Are you able to tell us which individual within the Northern Ireland Office? Was this the normal channel of dealing with these OTR letters?
Kevin McGinty
As I said at the beginning, this was a process that had risks. We wanted to try to reduce those risks as much as possible. I do not think it would be fair to criticise the Northern Ireland Office for adding some checks to a process to make sure that the letter they were sending out was correct and that the checks had been done.
Lady Hermon
Would it not have been wise, having altered someone else’s letter, to have told that person, or to at least have had the courtesy to have told that person, “I have altered your letter”?
Kevin McGinty
To be fair to the Northern Ireland Office, they went back to them and said, “Look, are you sure you have carried these checks out? Have you carried out these checks?” Remember the police said they had not seen any letters.
Lady Hermon
Forgive me for interrupting you. Did the Northern Ireland Office explain the purpose of their telephone call and their subsequent email? Did they explain to Mr Sheridan’s office that, “We are intending to alter your letter”?
Kevin McGinty
No. All I can point to is the two documents I gave you: flag 18, which is pages 769 to 771[9].
Lady Hermon
So, the Northern Ireland Office asked the questions but did not explain what they were going to do with the information. Is that correct?
Kevin McGinty
To my knowledge.
Lady Hermon
Yes, it is. You have been in the Attorney General’s Office for a long period of time. You are the constant. I say that as a tribute to you. You are the constant. You have been there, and you know Northern Ireland very well indeed. You have been there in Peter Goldsmith’s time, then Baroness Scotland’s. Did you personally brief each different Attorney General on OTRs—on this secret scheme?
Kevin McGinty
Yes.
Lady Hermon
You did. Could I then take you back to the General Election of 2010, when we change Administration? We change Administration completely. It is no longer a Labour Administration. We have a coalition Government. We have Dominic Grieve, a man, again, of the highest integrity. He becomes the Attorney General. Did you also brief Dominic Grieve personally about this scheme?
Kevin McGinty
He has already answered a PQ to say that he knew about the scheme in Opposition. He was given a briefing as an incoming law officer, as all law officers are. I described the OTR scheme to him in writing. I cannot say—and I have looked again at the briefing—that it was clear that it was an ongoing process, but I had described the scheme. I also gave him an oral briefing. I can no longer remember what I said; it was a while ago. But certainly he was writing to the Secretary of State about the scheme in 2012, basically repeating what all of his colleagues had said, which is, “This should not continue. This is not good.”
Lady Hermon
That was in 2012 that he came to this conclusion, but he had been in post for two years.
Kevin McGinty
It came as a request from the Secretary of State as to how to take the process forward. He said along the lines of, “Enough is enough. Do we really need to proceed with this?”
Lady Hermon
Yes. Could I take you back in time to 2010? You will remember, probably better than many of us, that devolution of policing and justice had gone through very successfully in the spring of 2010.
Kevin McGinty
Yes.
Lady Hermon
We had already selected David Ford MLA, the Leader of the Alliance Party, to be the Justice Minister. That was in March, I think, of 2010; devolution had successfully taken place of policing and justice. Why in heaven’s name did the Attorney General’s Office and Dominic Grieve and the new administration decide to continue with this ghastly scheme after devolution had been going for several months and had been going successfully for several months?
Kevin McGinty
It had been the end of a long process. There had been a number of names; I do not think there were many names left to deal with before the whole thing was stopped.
Lady Hermon
The excuse that has been given by former Secretaries of State—the Right Honourable Member for Neath comes immediately to mind, I have to say—is this was all about saving the political process. The political process in 2010 did not need to be saved. It was firm; it was steady. Stormont and the Assembly are working; we have got devolution. It might not be working quickly but it is working and it is there. Why did Dominic Grieve and the new administration accept these letters and this scheme at all? What was it saving?
Kevin McGinty
It was a hangover. As I say, it was just some few names left. That is the only explanation I can give you.
Lady Hermon
But it was not saving. You will confirm it was not saving; we did not need to save the peace process in 2010.
Kevin McGinty
That is not for me to say, but I will say my personal view is no.
Lady Hermon
Thank you. Could I just ask one final question? That is about the trial itself. If you are able to tell the Committee, were you able to attend Mr Downey’s trial—to sit in the Old Bailey?
Kevin McGinty
There was not a trial; it was just an abuse-of-process argument and there was no live evidence heard as such. It was all done on written statements. I attended the bail application, I think; I did not attend the rest of it.
Lady Hermon
Would that have been common practice, or was this case regarded as being of such seriousness that you felt you had to go?
Kevin McGinty
This was a very serious case. This was a very, very serious offence. It was complicated by the fact that there was this letter and it was clear that an error had been made. The Attorney gave his consent to prosecute in relation to the Explosive Substances Act. He carried out a Shawcross exercise. We appointed Brian Altman QC to prosecute. Brian had, until recently, been First Senior Treasury Counsel at the Central Criminal Court—the doyenne of prosecutors; the prosecutor that the Government would use for all the most serious of offences. We took it very seriously.
Lady Hermon
I do not doubt that for a moment.
Kevin McGinty
I made two witness statements to try to support this prosecution.
Lady Hermon
Yes. Given both the seriousness of this for the rule of law—I think the word you used first of all was “dangerous”, and then you said it was very damaging to the rule of law; certainly it has been very damaging to the rule of law—and the political significance of this, were there representatives of the Northern Ireland Office also present?
Kevin McGinty
I do not think anyone was present, but they were kept informed and were very interested in it. I do not think anyone came from the Northern Ireland Office, but they were kept informed of it and wanted to be kept informed, as did Number 10.
Nigel Mills
I am trying to work out exactly what the purpose of entering into this scheme was. I think you have said it was not to give people a free pass from prosecution who should be prosecuted. Is that right?
Kevin McGinty
Yes, absolutely, fundamentally right.
Nigel Mills
I am intrigued, then, by paragraph 45 of the Downey judgment[10], which I can read for you. It says, “On 19 January 2001 the Prime Minister gave Sinn Fein a written assurance that: ‘…The Government recognises the difficulty in respect of those people against whom there are outstanding prosecutions for offences committed before 10 April 1998. At present, they face the possibility of extradition or prosecution even though the offences if proven were committed before the key date for the early release scheme under the GFA. The Government is committed to dealing with the difficulty as soon as possible, so that those who, if they were convicted would be eligible under the early release scheme are no longer pursued…’” That seems to suggest that people who—
Kevin McGinty
That is an amnesty.
Nigel Mills
Yes. So, that was the assurance given to Sinn Fein in 2001.
Kevin McGinty
Yes. That is why they would then try to bring in legislation that would provide that.
Nigel Mills
Five years later.
Kevin McGinty
But it was against a background where the Attorney wrote on numerous occasions to say, “The prosecution process and this administrative scheme can never fulfil that promise”.
Nigel Mills
When you say that this process would be hugely risky and could damage the rule of law—
Kevin McGinty
For the three reasons I set out in my statement, which are impartiality; the fact that you are trying to assess evidence in the absence of the individual; and I have forgotten the third. I am sorry. It is in my statement.
Nigel Mills
So, effectively, it is not just the fact that this process itself was corrupt; it was that it might be perceived to be corrupt. Is that it?
Kevin McGinty
I am not going to use the word “corrupt”. “Corrupt” has a particular meaning for lawyers. But the potential damage to the prosecutor was as Lady Hermon and others have pointed out, which is it appears to be partial. In Northern Ireland, throughout the Troubles, it was essential for maintenance of confidence in the prosecution process that it should be even-handed and it should not show partiality. That is where the potential danger lay.
Nigel Mills
I am trying to get a feeling for, when the Attorney’s department was asked to enter into this process, whether you were greatly resistant—saying, “Look, we really should not be doing this at all; this is wrong”—or it was more a resigned acceptance.
Kevin McGinty
No, it was not wrong in relation to the individuals to consider whether or not the public interest continued to require the prosecution of individuals who had been involved in the peace process. At some stage, that question was always going to be asked. I have set this out in my statement. It is speculation, but I think it was the fact that, to their surprise, two individuals who thought they were wanted in Northern Ireland were told, as a matter of fact, “You are not”. Sinn Fein say they had their own people out there who needed to be kept happy, and a number of them thought that they were not free to come back, and therefore, if those individuals who were in fact free to come back could be identified, that would help. As all of the police witnesses have said, apart from Mr Baxter, there is nothing inherently wrong in that process; it is just not one that we are comfortable doing.
Nigel Mills
It just begs the question of how thorough efforts were to find a prosecutable case with that as the backdrop, does it not? Were you not concerned—
Kevin McGinty
We could not prosecute in these cases because they were not within the jurisdiction. Some of them we had tried to extradite, unsuccessfully. These were people who were not in the jurisdiction and we could not do anything about. The system we would have much preferred—and suggested—was, “Look, if they come back, they will find out whether they are going to be prosecuted” but, not surprisingly, that was not something that could be sold to Sinn Fein. Not by us; by politicians.
Nigel Mills
Mr Sheridan suggested his preferred scheme was to get a chance to interview them under caution, but that, perhaps not surprisingly, did not seem—
Kevin McGinty
We would all prefer a more normal process. I accept this was not a normal process. We would have preferred a more normal process, but that was not going to happen.
Nigel Mills
Was your department not concerned when you heard that this Historical Enquiries Team was up and running and was reviewing some of these cases? Was it ever thought, “Oh God, we have just written and confirmed to a lot of people that we have not got enough evidence to prosecute them? Are we not corrupting that process?”
Kevin McGinty
We tried to be as rigorous as we could. For instance, if a file had gone to the Director of Public Prosecutions, a lot of checks were then done as to whether or not that individual could still be prosecuted. For instance, the police would go off and try to identify the witnesses who may have given witness statements 20 years before. Some of them may have been in the armed forces; some of them did not want to come back to Northern Ireland. Other witnesses had died. It became clear that in some cases the forensic evidence you would need to rely on in order to bring a prosecution could no longer be relied on. In some cases, we had managed to prosecute a co-defendant and in the course of a Diplock trial the judge had thrown the case out because he considered that police witnesses were not credible. In those circumstances, if a judge had already found that the witnesses were not credible in relation to one defendant, they were going to find the same in respect of the co‑defendant based on the same evidence. It was only in cases like that where we were saying the Director would come to the conclusion that the test for prosecution was no longer met. The letters that were sent were designed to be, “Of at this moment we write this letter, and on the basis of the evidence we currently have, you will not be arrested or prosecuted”. If the HET came up with fresh evidence, then, in our view, you would be able to prosecute that individual.
Nigel Mills
What does “fresh” mean in that context?
Kevin McGinty
Evidence that was not available to the Director when he considered it.
Nigel Mills
And what does “available” mean?
Kevin McGinty
Evidence that is before the Director when he considers it.
Nigel Mills
So, if it was in the file but just was not spotted or dots were not joined—
Kevin McGinty
If it was in the file and was not spotted, that is evidence that is before and, through incompetence, we have not seen.
Nigel Mills
But if it was in the police file but not the one that went to the prosecutor—
Kevin McGinty
The state for these purposes is indivisible, as it was for the Downey judgment; it does not matter.
Nigel Mills
So, if, somewhere in the police files, they had some evidence that they did not quite realise what its significance was and it had not—
Kevin McGinty
That would not be new evidence, I do not think. We would never survive an abuse-of-process argument.
Nigel Mills
So when the HET are looking through all the 3,000 killings and trying to work out what happened, effectively, if they do manage to join the dots and piece things together from the files that perhaps have not been thoroughly looked at for 20 years, if someone has had a letter, that is tough. That is not fresh evidence; that is evidence you should have competently used already.
Kevin McGinty
Yes, probably. My understanding is the Historical Enquiries Team was not primarily to bring prosecutions; it was to bring an explanation to the victims as to what happened in their case.
Lady Hermon
They are proceeding with prosecutions.
Kevin McGinty
They are, and I accept that. There were some difficulties in the early days because the Historical Enquiries Team were coming to decisions as to evidence that would not meet the prosecutor’s test, so we had to go through the whole process of saying, “Look, if you are going to tell people that this person could be prosecuted, you need to come to the prosecutor first to make sure that that is correct. If you are just trying to tell the story of what happened, to explain to victims what happened, that is slightly different.” It may have clarified since then; I have not had much to do with it in recent years.
Nigel Mills
Did you not think it was a little strange that you would have that inquiry process ongoing and you would not pause the sending of the letters until that process had been done? It seems a bit strange that you have got one part of the PSNI, effectively, doing a new, fresh review of all these cases and another part of the PSNI doing some sort of quick and dirty review to send out one of these letters.
Kevin McGinty
No one would have been sent any letters, because the process is very slow. They carried out whatever checks they could at the time and it was a thorough process. There is always the possibility that at some stage in the future new evidence will come to light. It may well be that there are new DNA tests one perhaps could do, which, again, would be new evidence.
Nigel Mills
The letter that gets sent that says, “If any other outstanding offence or offences come to light…” means if Mr X, who was originally wanted for bombing Y, gets sent a letter but we suddenly want him for bombing Z, that counts as a new offence and we can start again.
Kevin McGinty
Yes.
Nigel Mills
But if it is just bombing Y, we are a bit stuffed unless we can clearly show it is new evidence that we did not have before.
Kevin McGinty
Yes.
Nigel Mills
That is a little different to what some other witnesses have said, who have basically said these letters were meaningless, in that if, on the next day, there was a change of mind on the ability to prosecute, then that was completely open to a change of mind. That is not the case, then.
Kevin McGinty
This was a system that had the imprimatur of the police, the DPP, the Attorney General and the Secretary of State for Northern Ireland. That gives weight to the letter that was sent. You cannot then change your view on a whim thereafter. This is why letters were sent rather than simply information being passed on to individuals. We wanted to try to make it as clear as possible what it was that you were being given.
Nigel Mills
If, in any other course of events, I am arrested and investigated and I am told, “We have not got enough to prosecute you” and then a year later they decide to change their mind, they can do that normally, can they not? The police and the prosecution services can generally change their mind on the weight of evidence.
Kevin McGinty
It depends. I am sorry. It depends.
Nigel Mills
I always thought that double jeopardy only applied if you had been acquitted, not if you had just not been formally charged.
Kevin McGinty
Yes. If fresh evidence comes to light, you can continue, which is the only circumstance in which that would have happened.
Nigel Mills
Do you think the sending of these letters, then, creates some kind of right that would not ordinarily be available? It is not like this is a slightly unusual way of doing something but something similar happens all the time to other people; these letters do create a new legal right that would not normally be created.
Kevin McGinty
I would not say it created a new legal right. It was probably unique, but I would hesitate to say a “legal right” as such.
Nigel Mills
At least these were intended to give people a right they did not have without that letter.
Kevin McGinty
It was intended to assure an individual that if he or she returned to the jurisdiction there was insufficient evidence at that stage to either arrest them or to prosecute them.
Nigel Mills
Do you think a letter is revocable? If we had written to Mr Downey and said, “Whoops, sorry. We made a mistake. Your letter is cancelled; you cannot rely on it now”, is that—
Kevin McGinty
They are not revocable if there has been no change because there is nothing to revoke, in the sense that we could not prosecute him then; we cannot prosecute him now. If the position is the Downey case, where we suddenly become aware of the fact that the letter was a mistake and there is sufficient evidence, and always was sufficient evidence, to prosecute you, then I think we withdraw the letter. That has problems, but we withdraw the letter. Indeed, on one occasion a decision was reversed.
Nigel Mills
So that is possible. The letter is not absolute; it is only enforced—
Kevin McGinty
It is going to be difficult, because you have to then tell the person that, “The letter that you have got is in error” and that “you will be arrested”, and I think you then have to give them some time to absent themselves. It becomes bizarre, but if you did not do that, you would be in the same position as you were with Downey, and you would know you would lose the case. I think it is fairer to the victims in the circumstances to try to ensure that you do maintain a possibility of prosecuting that person.
Nigel Mills
It does beg the question, though: if it was known a mistake had been made in the Downey case, why did nobody ever seek to revoke that letter?
Kevin McGinty
Because nobody told us. The only people who knew were the PSNI, and we were not told. If we had been told, we would have reversed it.
Nigel Mills
Because the Met did not know a letter had been sent and the PSNI—
Kevin McGinty
The Met were not involved in this process.
Nigel Mills
But they knew they wanted Mr Downey, effectively. It is all a horrible mess.
Kate Hoey
Mr McGinty, your evidence has been very enlightening, and your report that we got has been very helpful. Can I just ask you a couple of quick things? Did either Jonathan Powell or Peter Hain, who put in statements[11], discuss that at any time in the last year or so, when they were thinking of doing it or whenever they were asked to do it, with anyone in the current Government or anyone within the Attorney General’s Office or, indeed, yourself?
Kevin McGinty
Certainly not the Attorney General’s Office and certainly not myself. Any previous Minister who is giving evidence in a case is entitled to get some support and access to materials from their previous Department. I do not know whether that happened in this case. It probably did in relation to Mr Hain; I do not know if it did with Mr Powell. I do not know.
Kate Hoey
So they might have been assisted in whatever statement they put in.
Kevin McGinty
Only to the extent that they may have been given access to material that they would have used at the time they were in office, but that is true of all past Ministers.
Kate Hoey
Okay. I was just interested. Did you know they were putting evidence in?
Kevin McGinty
I was told that Mr Hain had been approached by the defence. I did not know about Mr Powell.
Kate Hoey
Thank you. Secondly, on the appeal situation, Dominic Grieve was very clear from the beginning, when he made his statement, that he was not going to exercise the right of appeal. Did you advise him on that?
Kevin McGinty
I was part of the team that did advise him, including the Crown Prosecution Service and all of the counsel involved in the prosecution, including Brian Altman.
Kate Hoey
And you felt absolutely 100% that there was no possibility of appealing what seemed to many people an incredibly bizarre judgment by a judge.
Kevin McGinty
Mr Justice Sweeney is an extremely experienced judge.
Kate Hoey
That does not mean he always gets it right.
Kevin McGinty
In his past career, he was First Senior Treasury Counsel at the Central Criminal Court, as indeed Brian Altman had been. He prosecuted most of the big IRA terrorist cases in England. He was one of two specialist terrorist judges. He made a very careful judgment.
Kate Hoey
Was that the reason you did not appeal—because he was such an eminent person?
Kevin McGinty
No, of course not.
Kate Hoey
Okay. I did not think it would be as simple as that. What exactly—
Kevin McGinty
We did not think an appeal would be successful.
Kate Hoey
If the Attorney General had said, “Look, we have got to appeal this, for the sake of the peace process”, would you have been able to find a reason for appealing?
Kevin McGinty
At the end of the day, if you appeal it, you have to appear before the Court of Appeal and give your reasons for appealing; you cannot just say, “It is because we want to”.
Kate Hoey
No, I understand that.
Kevin McGinty
We could not come up with any grounds to be able to say we would have any chance of succeeding in the Court of Appeal.
Kate Hoey
So, with all the legal minds, nobody could find a way of being able to at least get it in front of an appeal—in terms of being able to decide whether they could—
Kevin McGinty
We did not think that we would succeed.
Chair
Can I press you on that point: succeed in getting it heard or just failing to get the decision reviewed? The reason I ask that is the Attorney General has stated that there is a right to appeal a stay; our advice from our QC is that there is no appeal against the stay.
Kevin McGinty
You can appeal the decision that he made to the Court of Appeal. If I have got this wrong and I go back and I find it is wrong, I will write to you. If new evidence in relation to Mr Downey came to light, you could apply to have the stay lifted. It would be extremely unlikely you would be successful. That is a slightly different process from appealing the decision that Mr Justice Sweeney reached in February.
Chair
If there is an appeal mechanism, which the Attorney General has said there is, it is extraordinary to us and everybody else that I have spoken to who has considered the case that that is not pursued. Whether it was a mistake or whether it was intended to be that way, is questionable; we hope to find that out. But the letter itself that Mr Downey relied on really just says, “The PSNI are not aware of any other interest”. That is not clinical; that is not legally tight phrasing at all. It really does seem to us extraordinary that the Attorney General says there is a right to appeal, questionable though that is, and that he is not taking up that option.
Kevin McGinty
Prosecutors do not do things simply because they are desirable to do. They have to reach difficult decisions. You cannot prosecute someone simply because you want to prosecute them or to get the chance of getting a conviction.
Chair
No, but he brought the case. He had sufficient motivation to bring the case in the first place.
Kevin McGinty
The test for prosecution, though, has to be met before you can prosecute someone. Similarly with an appeal; you do not take an appeal forward unless the proper test is met, which is whether there is any success in taking the appeal forward.
Chair
You have described the judge’s experience in bringing prosecutions. Is he experienced in due-process cases to the same degree?
Kevin McGinty
He is a very experienced judge.
Chair
So he is completely right on this, in your opinion, given that the Attorney General knew about this letter when he instructed the case to be brought.
Kevin McGinty
This was a proper case to bring for trial. We could not guarantee that we would get through the abuse-of-process argument, but we brought the prosecution because we thought that there was a realistic prospect of getting past the abuse-of-process argument and so on to trial. That was why it was a proper case to be brought.
Kate Hoey
Just on that one, if you had known then the furore and the deep hurt that the judgment would cause, would you have been advising not to go ahead with prosecution?
Kevin McGinty
I do not think the facts have changed. That is the sad thing. Prosecutors are not allowed the luxury of doing that.
Kate Hoey
Mr McGinty, you are very well respected and clearly know your job and have been there a very long time. In your document to us, you refer a number of times to Sinn Fein: “I have already explained that Sinn Fein kept up pressure on No 10”; you talk again about “Sinn Fein continued to press No 10”; Sinn Fein this; Sinn Fein that. You have described the whole process as being “not normal”, and some of my colleagues have described it as perhaps more corrupt, or at least neo‑corrupt in terms of the process and what happened to people who were United Kingdom citizens. Do you understand now just how this has gone down in Northern Ireland, particularly amongst those people who have felt for a very long time that the whole process has been rather one-sided and that now it is very clear that during this whole peace process it, yes, ended up with less violence and so on, but we ended up with a situation where, quite clearly, Gerry Adams, Gerry Kelly and all the others were literally calling the tune?
Kevin McGinty
Can I just clarify one thing? What I have said about what Sinn Fein and Number 10 were doing I have only taken from the documents that were released for the purpose of the abuse-of-process argument because you asked me to try to make a statement as to how the thing evolved; it did not come from personal knowledge. Secondly, it was Number 10 and the Northern Ireland Office who were engaged in these negotiations. I do not know what they thought was necessary. I do not know what was necessary. It may have been necessary. I do not know. As to the impact this has had on Northern Ireland, it has been coloured by the Downey decision, of course. If this had become public without Downey, it may have been slightly different; I do not know. But yes, I take the general point.
Kate Hoey
Maybe I am reading you wrongly, but I get the feeling that, because it was more Downing Street and the Northern Ireland Office and this very political level, you are almost a little bit not ashamed but embarrassed by it all and wish, as a legal person, that this had not happened.
Kevin McGinty
Most lawyers will not want to move out of what they feel comfortable with. This was not a usual process. It was accepted because we were asked—not told or whatever; we were asked—to carry out this process. We did not consider it to be an unlawful process, although we realised that there were risks. But at the end of the day, it is for Government to decide, I am afraid, what risks to take and what risks not to take. All the prosecutor and police can do is to ensure that their own personal integrity is not affected, and I do not think it ever was in these cases. Both the police and the prosecutors reached the decisions that they always do without fear or favour based on the evidence. The political pressure was to carry out the process in the first place and to try to do it as quickly as possible.
Oliver Colvile
So I have got it clear in my own mind, we have the Northern Ireland Office, which wrote to the PSNI asking whether or not they had done any checks on any other potential charges that might be lying around; the PSNI wrote back twice and said, “No”, and then—
Kevin McGinty
No. Because what had come from the PSNI was in a slightly different format than had come in the past and did not say, as earlier examples had, that not only were they not wanted by the PSNI, they were not wanted by any other force in the United Kingdom either, the Northern Ireland Office went back to check with the PSNI to make sure they had checked whether they were wanted by other forces in the United Kingdom.
Oliver Colvile
So the PSNI had not looked at the national crime database.
Kevin McGinty
No, they had looked at it and they came back to say, “Yes, we have looked”.
Oliver Colvile
Right. But they did not say, “And, by the way, there is something on there”.
Kevin McGinty
No.
Oliver Colvile
Right, okay. That seems to be a bizarre thing to go and do. We have then also got Sinn Fein, who are working on the old boys’ network of putting political pressure upon Number 10 Downing Street, and Number 10 Downing Street are desperately keen to try to make sure that the peace process continues and does not get derailed in any form at all. Alright? But we have also now got a whole group of victims who feel that their loved ones have not had justice done for their killings and their deaths. Secondly, you may know I represent a military garrison town—a naval constituency—and I have got a whole lot of Royal Marines who potentially are sitting there thinking to themselves, “Golly gosh, how are we going to end up by being treated in all of this? Are we going to be looked after in the same way, potentially, that some members of the IRA have ended up by doing so?” That is a very difficult position, therefore, for us to play, most certainly amongst the military as well. What are your views about that?