Oral evidence: Administrative scheme for ‘on-the-runs’, HC 177Wednesday 4 June 2014

Oral evidence, 4 June 2014.

Witness

Dave Cox QPM, former Director, Historical Enquiries Team, gave evidence.

Chair

Okay, we will kick off. Thank you very much for joining us, Mr Cox, and sorry for keeping you waiting. As you saw, there is considerable interest in this subject.

Dave Cox

Yes, indeed.

Chair

It might be helpful if you set out how the HET carries out its inquiries and how it works within the PSNI generally. I think that would be helpful to the Committee.

Dave Cox

I was listening to Mr Durkan, and he touched on 2004 and 2005 as being an important time for the HET. In 2004, Sir Hugh Orde, who was the Chief then, was looking at coming up with a method of dealing with historical cases, for want of a better description. In early 2005, I was invited to go over and set up a unit. The background to that was the fact that the relatively new and restructured PSNI was finding it difficult to cope with the outstanding cases from the past. It had a crime operations department which was very modern and structured along the lines that you would expect for a modern police force, but it had a huge number of cases left over from the time of the troubles. One of the side effects, so to speak, and the benefits of the peace process was that people got the confidence to come forward and ask questions about what had happened to their loved ones during the terrible times of the troubles. There was no consensus on how to deal with that. The police were looking for more resources, but they were limited. Hugh Orde came up with the idea of saying, “Well, why don’t we have a bespoke unit that just deals with older cases and frees up the crime operations department to get on with current policing issues?” That was the remit and the ballpark into which my colleague, Phil James, and I came—just the two of us—and we were asked to come up with a model of how we would create that bespoke unit. We said, “What is it exactly that you would like us to do and how big is the issue?” There was no answer to either of those questions, because there were no records, even in terms of how many cases there were. In fact, the best record we could find at the time was a book called Lost Lives—an excellent publication. Police statistics and police crime records only held cases that were recorded as crimes. Cases where people had perhaps been shot by soldiers and that had been found to be a lawful act were not recorded as crimes, so we did not have a full and comprehensive database. We did not know how big the job was or what we were expected to do. There was some suggestion that we were going to be a review unit that would take case papers, look at them and just say, “Yes, there are some new opportunities in this case,” or, “No there aren’t.” Even when we were formally announced, the Secretary of State—I think it was Paul Murphy then—said, “This unit will look at x number of unsolved murders and x number of other deaths,” and he offended everybody classed as another death. It became a very difficult issue for us in those early days to say, “What is it that you want us to do?” So we met, under Hugh Orde’s governance, really, and with his encouragement, with a body of people, including NGOs—I think particularly of Jane Winter and British Irish Rights Watch, a very experienced and capable operator in a very ethical organisation. I remember her saying unless you come up with something that addresses the needs of the victims’ families, you are wasting your time. We also found that terms like “unsolved” or “solved” meant nothing to anybody who was not a policeman, because we met with numbers of families who said to us, “Well, it’s all very well you saying this is a solved case, but I don’t know anything about it. I don’t know what happened.” We met families who did not know that people had been arrested for the murder of their loved ones. We met families who did not know there had been an inquest. We met lots and lots of families who had never seen a policeman from the day that their loved one was killed. It quickly became apparent to us that we had to do more. So almost overnight we went from looking at perhaps 1,300 unsolved murders to redoing all the deaths attributable to the troubles in Northern Ireland. That work counted over 3,200 deaths in some 2,540 incidents, which was a massive undertaking. We had not been provided with a huge sum of money, and nothing in the terms of, say, the current Hillsborough inquiry or the Saville inquiry. Nothing like that. We had £30 million over six years. That was the ball park to deal with those 3,500-odd deaths. We were given no terms of reference; we had to invent our own. Essentially, after working with NGOs, we came up with the idea that we would work for families—and Hugh Orde was particularly keen on this. We will try and answer family questions. We will look again at all the deaths. We set up as a unit that became much wider than a police unit. Yes, of course, we had our core police role. We looked at a case—all the records—to see: can we find any new evidence that will advance this case? If we could, great; if not, we undertook to answer all the family questions as far as we possibly could. We then came up with the idea that we would give families a report. We generated a written report called a review summary report, which could range from about 10 pages to 110 pages. These tried to answer for families what had happened. We set up; we moved on. It became quite clear to us that it was unrealistic. The time scale we had been given was initially six years, and after four years we had only done some 400 cases out of the 2,500 case load that we had. So it became clear to us that we were going to have to do things a different way. That led to a departure from what would be an accepted police model. In fact, we became something much more akin to a monthly magazine, or a weekly big magazine. We ran an editorial process, and it was all around getting the reports through and out on a weekly basis to families, to try and meet this number of cases. We were expected to complete some 30 to 40 reviews a month by the civil servants who were funding us. That was the target we were given. The only way we could do that was to abandon hide-bound police ideas and come up with a completely new model. We went for 10 senior investigators and we said to them, “Right, your job is to come to this board every week with a review ready for submission, and to go forward for checking, and then out to families.”

Lady Hermon

Sorry to interrupt; could you just—when you are working through the chronology of all this—focus on when you were told about OTRs and particularly about the operation of it?

Chair

Order. I have not got to that question. I did not actually pose that question; but, fascinating though the history is, I think I am going to ask if we could abbreviate it there and ask one or two other questions.

Dave Cox

Yes, I will abbreviate as much as I can. It all sort of ties in.

Chair

Perhaps you could conclude by telling us when you expect to complete the work. I think that would be of particular interest.

Dave Cox

Never. It no longer exists.

Chair

Right. We have a number of questions. I appreciate that we were late starting, so I apologise.

Naomi Long

You have described the work of the HET and how it was looking at historical cases. At what point were you made aware of there being an administrative scheme dealing with on-the-runs?

Dave Cox

I don’t really remember a particular point. Again, one of the big issues was that the HET, albeit it had a massive case load, was concerned only with deaths—the HET was set up to re-examine deaths attributable to the troubles. Issues such as on-the-runs were much wider. People could be wanted by the police for a variety of issues, such as being members of terrorist organisations, possessing firearms or absconding from court. Whatever the case, the issue was much wider than the HET’s remit. That is why the issue was dealt with by the PSNI. I certainly knew that a scheme was being worked up, and I knew Norman Baxter was running it, but it did not really impact on us because we were going to do our job anyway. We felt that if we came across anything relevant, we would be in touch with them.

Naomi Long

I do not understand how you could reach the conclusion that it would not impact on your job. If there are two parallel processes, one of which is your investigation into historical crimes, of which some of those who are on the run—although I accept that it was not all of them—may have been implicated, you could essentially have been investigating the crime while another branch of the PSNI was effectively issuing letters of comfort via the NIO to say that those people were no longer being sought by the PSNI. Surely the files that you would have been reviewing to progress those investigations were the same files on which the judgments on whether there was sufficient evidence to require somebody to attend an interview were based. Surely there had to be connectivity between the two in order to ensure that information was not being given that contradicted the work in which your team was involved.

Dave Cox

You have to look at where we were. As I recall, this was all happening in about 2007-08. Even by 2009-10, we had done only 400 reviews. We would not have been in a position to say that we had found any new evidence. Although I do not know, I assume that the PSNI’s work would have been on the basis of what existed to their knowledge at that time. We would not have reviewed most historical cases by that stage; we were stuck in the very early ’70s for many years.

Naomi Long

Was there no stage at which, for example, the Operation Rapid team and the HET team were jointly briefed about the ongoing work and fully informed of how that work would potentially interact or conflict? Were you never formally contacted by Operation Rapid to ask whether any of the cases on which your team was currently working had any new evidence or insight into whether an individual should be required for questioning or otherwise? Did you essentially work in isolation while Operation Rapid worked on a different stream? Was there no interaction, formally or informally?

Dave Cox

I do not know about there being no interaction. There was no formal interaction. If we were looking at a case, I would have expected the staff dealing with that case to check whether a person was wanted on the police databases. We may have been contacted by Operation Rapid, but I do not know that we were. I have certainly seen an exchange of e-mails in the paperwork provided to the Committee[10] in which there was contact from an HET operative in relation to the Downey case, so there obviously was some interaction at various stages. Was there a weekly meeting? Was it a joined-up effort? No, it was not.

Naomi Long

Okay, so there is nothing structural. You say that you do not recall the precise point at which you became aware of it, but do you recall the circumstances? Was it as a result of a case review in which a so-called on-the-run was implicated? Or was it as a result of someone coming and specifically informing you about the work that was being done by Norman Baxter and team?

Dave Cox

My deputy at the time was Phil James. He had been to a meeting at which he was updated that this process was ongoing. As I recall, this had fallen out of a draft—“draft” may be the wrong word, but there was some prospective legislation being talked about regarding amnesties at one stage. On the back of that falling off the edge, the on-the-run issue came up, as far as I recollect, but it was not big business for the HET. We were really engaged in trying to set up our own methods to get on with a huge work load, and we had not done many cases, so we could not have said, “Excuse me, we’ve got a database of x number of people who are wanted.” That changed. By 2013, we had referred some 63 cases to the PSNI, so it would have been a different ball game in 2013. We would have been much more involved in saying, “Hold on a minute; we have found new evidence.” And it is new evidence that we are looking for.

Naomi Long

In light of what has happened with the Downey case and what has emerged subsequently, do you wish you had taken more interest in what Operation Rapid was doing—

Dave Cox

It is not a question of interest.

Naomi Long

And that you had had more formal procedures in place to connect the two lines of inquiry.

Dave Cox

I don’t think the Downey case, as I recall, came into it. As far as we were concerned, he was wanted for a crime in England, which was outside our remit.

Naomi Long

Though you would accept that, at this point in time, we are unaware as to whether any of the other cases that you did investigate in the HET could be similarly affected by correspondence of that nature?

Dave Cox

Well, yes. If in 2008 you had said, “In six years’ time you might be at a panel like this answering, ‘Did you know this was going to happen?’,” no, we did not know it was going to happen. The PSNI made their decisions on the basis of what was in front of them at the time.

Naomi Long

Could I perhaps then pose the question in a different way? I am not asking whether you thought this could happen; I am asking whether now, with the benefit of hindsight, you believe that the procedures that were put in place to connect the HET and Operation Rapid were sufficiently robust?

Dave Cox

I am not sure that the procedures to connect the HET with the PSNI at all would be sufficient, in hindsight.

Nigel Mills

Mr Cox, could you give us an idea of how long one of your case reviews would generally take when you were, in your words, doing proper policing work?

Dave Cox

Proper policing work. As I have explained, we had a much wider remit than that. We were doing two things: first, we were looking at whether there was any evidence, which could be quite a quick process; and then we were trying to answer family questions, which could be much wider than a policing context, and might involve political issues, issues about agents, and worries about collusion and all the things that families do worry about in these cases. They take a lot of research and a lot of answering. As I said, I had 10 teams working on them. Each of my senior investigators would have had a current case load of between 40 and 60 cases. I was the ogre who ran the meetings on Thursdays at which I required them to come with a completed case, so they would have cases at various stages of completion. Some cases could be dealt with in a month. If you take a terrible case like a soldier who was shot by a sniper in Belfast—no witnesses, no evidence, no suspects; very little really—the family may have a bucket list of questions because, frankly, the Army was not very good at updating people about what had happened after a murder. Families were very bitter and unhappy and had no information, and we were able to fill in some gaps, so they would be done quite quickly, but if you went for something like the Kingsmills incident, that may take six years or more to try to review.

Nigel Mills

The reason for my question was that in the context of Operation Rapid, there was pressure on the police to review a large number of individuals quite quickly. Would that be hard to do in a proper policing way?

Dave Cox

I have nothing but admiration for Norman Baxter. I have always found him to be an excellent police officer, and if he was running it, I would expect it to be right. He could do only what was in front of him. It is an issue in policing: if a guy is shown as wanted on a computer, he is wanted; if he is not shown as wanted, as far as you can see he is not wanted. I am not sure whether that happened in that particular instance, but I do know that it is not quite as straightforward as that. Surprisingly enough, there are degrees of wanted. Someone might be wanted by the police for interview, but that does not mean that you could go to court and get a request or warrant for extradition, because if you are going to extradite someone, you have to have enough evidence to put them straight before the court. Someone might be wanted for interview about a case, but technically they might not be wanted to the degree that you could get an extradition warrant. It is not straightforward.

Nigel Mills

But there is a degree of evidence not existing that would mean you can write a letter to someone saying, “You are not wanted for any crime pre-1998.” That must be quite a low level of evidence, mustn’t it?

Dave Cox

I struggle to accept that such a letter could be given the weight that it has been given in these circumstances. As I said, it was written in the context of the time. It was written in perhaps 2007 or 2008, way before a HET review could take place. If we subsequently found something completely different, how could a letter that was issued before our review rule out any future prosecution? I do not follow that.

Nigel Mills

I think that is the point. There were some cases that you referred over for prosecution by the main PSNI team. I am not going to ask about specific cases, but did you do that in those cases because you found new evidence that was not in any of the files that you looked at—perhaps you found a new witness, for example—or was it because you found something in the files that you could put more weight on if you managed to join a few dots together?

Dave Cox

It is not like we are some super-detective who has come along later; we have benefited from advances in technology and science. I think the HET has achieved three convictions for murder in cases that the PSNI has taken to court. The first resulted from the recovery of a palm print on a door. Prior to the establishment of the HET, the PSNI computer database did not have palm prints; it had only fingerprints, because of the massive scale of it. We invested a lot of money and had all the palm prints that were held in records loaded on to the computer database. There was a palm print in one of our case reviews, and that led to the conviction of the gunman. In another case it was DNA. The science and techniques did not exist at the time that the murder took place, but the police had kept a cigarette butt, and later DNA examination came up with a suspect. The issue was one of advances—it was not really much more than that in many of the cases. There may have been new evidence because people were more willing to talk to the police after the troubles than they would have been at the time, but there has not been a huge number of cases like that. It is really about technical evidence.

Nigel Mills

One of the questions we have considered is the fact that the letters said, “You will not be prosecuted for any pre-1998 offence unless new evidence comes to light,” and there were a couple of other conditions. In your view, is a palm print on file that could not be compared before, but now can, new evidence or a better use of old evidence?

Dave Cox

No, it is startling new evidence, I think. It is new evidence because it has not been used in court proceedings before.

Nigel Mills

A final question: do you think that there was any realistic prospect that the Operation Rapid process could have done a competent review of all the evidence in all the files for all the cases before issuing those letters, or was that just physically impossible?

Dave Cox

I think that they probably did a very competent job of what was in front of them. They would not have known whether additional stuff was going to come in future. As I say, I have great respect for Norman Baxter—

Nigel Mills

But you’ve seen all the evidence; you’ve seen all the files; you’ve seen the mess that everything was in. There was no way that anybody could actually quickly know that there was not enough evidence to prosecute any individual without going through all the files.

Dave Cox

I don’t think you could ever say that. Never say never.

Nigel Mills

But we were saying “never”. That is the point of these letters.

Dave Cox

But I don’t know that they knew that they were saying that. I don’t know that the police knew that the letters meant “never”.

Ian Paisley

When did you commence working in Northern Ireland?

Dave Cox

First off, I was on the Stevens inquiry in 2002, which was looking at the Finucane murder until 2005. Then, in January 2005, we started setting up the HET.

Ian Paisley

Did you do any work during that period or was Rita O’Hare’s name brought before you at any point during your assessments?

Dave Cox

Sorry?

Ian Paisley

Was Rita O’Hare’s name brought to you? Did you do any investigative work into Rita O’Hare during that time?

Dave Cox

Not that I recall.

Ian Paisley

Not that you recall. We are trying to get to the bottom of who was in the secret circle and who knew what, where and when. So there was this process going on where Sinn Fein fed stuff into the sausage machine, and people in the Prime Minister’s office, the Northern Ireland Office, the Attorney-General and the DPP received information from the police and then out the other end. “Postmaster” Gerry Kelly got a letter and he handed to the terrorist on the run, the villain or the person who was innocent. Did you have sight of or know about that process?

Dave Cox

No.

Ian Paisley

No.

Dave Cox

I was obviously not in the secret circle.

Ian Paisley

You were not in the secret circle. Neither were any of us. It is either that you were in the need-to-know group or the rest of the world. There were of course some issues with Mr Downey, about which you will be well aware. It has been brought to our attention that a television programme has thrown up material suggesting that Mr Downey was complicit in the murder of two UDR soldiers. Have you done any investigative work into that activity?

Dave Cox

The HET did look at those murders.

Ian Paisley

Is Mr Downey complicit in those murders?

Dave Cox

The 1985 ruling from the DPP was that there was insufficient evidence to take forward any prosecution in that case.

Ian Paisley

Were there fresh factors or new evidence that would allow a trial?

Dave Cox

Not as far as I recall. This is what you would probably class as hearsay, but in preparation for coming here, I spoke to my former colleague, who is also former HET and who did that review, and he—

Kate Hoey

Who is that?

Dave Cox

His name is David Brown. I rang David and he said, “No, there was not sufficient evidence from the HET review to put that case back to the DPP.” There was nothing new that we had recovered.

Chair

What date was that?

Kate Hoey

Was it referred to the PSNI?

Chair

One question at a time. What date was that?

Dave Cox

I think it was 2010. Again, I have not been in the HET since last year, so I am guessing that it was about 2010. I note that the report came from the Committee in 2010.

Chair

That’s fine.

Ian Paisley

My understanding is that if new evidence emerges that requires investigation, the police then take that material and investigate.

Dave Cox

Had we found new evidence, it would have been referred to the PSNI to take it forward.

Ian Paisley

Right, but the fact is that a judgment was made that it did not reach the standard of new evidence and so was not handed to the PSNI. Is that correct?

Dave Cox

We hadn’t found anything that the PSNI hadn’t already shown to the DPP.

Ian Paisley

So it therefore did not go to the next stage, which would have been an investigation and perhaps charges.

Dave Cox

It did not.

David Simpson

On a point of clarification, to your knowledge, did the HET’s investigations ever result in a successful prosecution against someone who had received a letter?

Dave Cox

No.

David Simpson

You also made a point in your opening comments for some of my colleagues who have left when they asked whether this will ever be resolved and you said, “Never.” What did you mean by that?

Dave Cox

I don’t think that the current HET model will ever be finished.

David Simpson

Okay. The point that I want to make about that is that a number of victims have raised an issue with me about the OTRs—I am sure that other Members have had the same—but HET had been investigating their families’ murders. Reports were completed, but then they got letters from HET to say that those reports would not be released to them even though they were told, prior to the investigation, that they would be. So the families are saying, “Are these people that have received the letters, or royal pardons?” In your opinion, why are the reports not being released to the victims’ families?

Dave Cox

The reports are not being released because, since last September, the HET has been in a lockdown situation and nothing is going out. I can go on to explain. There was a long-standing issue with a number of groups. We were accused variously at various times by both sides—loyalists picketing outside saying that we only pick on loyalists and republican groups saying, “You are not article 2 compliant and you do not investigate deaths caused by soldiers properly.” There was an inspection conducted by the inspectorate of constabulary. I would assert that it was flawed, and that it was inaccurate to the extent of being totally wrong. As a result of that, the HET was suspended. I was never given the opportunity to answer the allegations in the HMI report. I was not shown the HMI report before it was published. The HMI himself never came to the HET during the inspection process. The Chief Constable accepted before even talking to me about the report, which had then been published—he went to the Policing Board and apologised, and said that he had got it wrong.

David Simpson

So you believe that if the lockdown was removed, the reports could be released so people could know if—

Dave Cox

I am not sure that they are up for being released. You would have to ask the Chief Constable that. They seem to have just shied away from it. I am not sure that there is any commitment now to honour what we said to the families.

Lady Hermon

Dave, I do apologise for interrupting earlier on. I just know that you have got an enormous amount of valuable information to give to the Committee and we are time-limited, so I do apologise if I appeared to be rude earlier on. You were reflecting there about what happened to HET last autumn, which was a tragedy, in my estimation. I thought HET was doing a superb job. On the radio at that time Sir Hugh Orde, who of course is the president of ACPO, gave a very stout defence. Could you just tell the Committee how long you have known Sir Hugh Orde? The two of you served in the Metropolitan police together.

Dave Cox

Yes, we did. I would not say that I knew him particularly well in the Metropolitan police. I ran a series of murders that crossed over area boundaries. I was the head of murder investigation on the north-west of London in 1998, and we had a series of crimes that crossed over boundaries. Hugh was commander on the south, and he oversaw it as senior officer, but I ran it on a day-to-day basis for him. We had a good result, so he quite liked me. From that time on, we had sort of known each other, but then he became Chief in 2002 in Northern Ireland and I took his former role as day-to-day in charge of the Stevens investigation.

Lady Hermon

Would it be accurate to say that in fact you were head-hunted? Did he seek you out to come and take over HET?

Dave Cox

Well, that is very nice—I hope he would support that.

Lady Hermon

Right. What intrigues me—obviously, this line of questioning is going somewhere—is the fact that you have known each other and trusted each other from your days in the Metropolitan police. I find it so difficult to grasp the fact that Sir Hugh as Chief Constable of the PSNI would not have confided in you about Operation Rapid and, as my colleague Ian Paisley has described it, the “secret circle”—to be inside the secret circle. I find it inconceivable that you would not have been told by someone who was a colleague—

Dave Cox

Yes, and a friend.

Lady Hermon

And a friend. I do not want to cast aspersions on his honesty, but I want to reconcile the two.

Dave Cox

I am not sure he would have thought it was exactly that important for me to be included in that circle. At the end of the day, I think he would have taken the view that you have a guy in a team here that is struggling to come up with a way of dealing with 3,200 plus deaths; he has got enough on his plate. We are looking at a much wider aspect here. Again, I go back to that. The on-the-run issue is much wider than just the deaths in cases; it is a very political issue. He has got a very good Detective Chief Superintendent and a first class Assistant Chief Constable in Peter Sheridan dealing with it. Why would he have needed to bring me into it? I think he would have expected, had there been a crossover in a particular case, that there would have been a reference from Norman to us about it, and I believe that it happened in the Downey case.

Lady Hermon

Well, in the Downey case, I thought that HET were notified at least twice.

Dave Cox

Again, it is difficult for me to answer that, because I have not got access to papers any more, but I see from the papers that the Committee gave me that there are two separate cases mentioned. Firstly, one of my operatives had spoken about a couple who had been murdered[11], and then there was the murder of the two UDR men[12]. I cannot recall anything about the first case and I have not got the papers. The UDR case I do remember and I spoke to the lead investigator, but again, what had happened was that, in the course of the HET review, the investigator thought he had found something new—that is, a photograph of an exhibit—and he thought that this was new evidence. In actual fact, it transpired—I take this from Tim Hanley’s report[13], which is also in the papers given to me by the Committee—that the DPP was aware of that evidence and had said the continuity of it was not sufficient for it to be regarded as of evidential value. So it was not new evidence and there was no other new evidence, and that is the briefing that I have had from my colleague. I think it showed that the system probably did work. They did talk to each other.

Lady Hermon

If that is the case, is there not a niggling doubt at the back of your mind—some of the HET reports, which, as you have explained to my colleague, Nigel, could take a very lengthy period of time and some were shorter, depending on how much evidence and how people could recall the incident. Does it not call into question, in your mind, the accuracy of some of those HETs reports that have been sent out now, in the light of the knowledge of 228 OTR letters?

Dave Cox

No, because—

Lady Hermon

You are absolutely sure?

Dave Cox

Yes. If we had found new evidence, we would not have stopped referring it to the PSNI because there was an OTR letter: we probably would not have known there was an OTR letter.

Lady Hermon

Well, that is the problem.

Dave Cox

But it would not have trumped the new evidence. We would still have referred a case to the—we would have said, “We’ve found a fingerprint or a DNA in this case,” and we would have passed it, expecting the PSNI to get on with it.

Lady Hermon

But do you think you were wilfully kept out of the loop, then?

Dave Cox

No.

Lady Hermon

Right. In any of the HET reports, did the HET seek to question on-the-runs in the Republic of Ireland, and if you did, how was that initiated? Surely, you must have.

Dave Cox

We wouldn’t.

Lady Hermon

You wouldn’t have?

Dave Cox

You would not be able to question on-the-runs—there were a number of cases that we looked at where there was a suspect in southern Ireland: several dozen of those cases.

Lady Hermon

So what did you do in those cases?

Dave Cox

Well, we just wrote the report, saying that the person who is wanted is in the South of Ireland.

Lady Hermon

Would you not have said to the families, “We will seek to notify the Garda or we have brought this to the attention of—”

Dave Cox

No, because that would already have been done. It goes back to that case or the scenario I was trying to explain earlier: there is a different type of “wanted”. You might be wanted for interview by the police, and loads of people were put up as wanted, simply because a murder, say, happened in a small town and the local UVF or the local PIRA people would be circulated as wanted, because it is very likely that they were involved—there may be no evidence. But that would not be sufficient to circulate them to the Garda and say, “This man is wanted for extradition,” because once you extradite somebody, you have to put them straight before the court; you cannot extradite someone for interview.

Lady Hermon

Let me just go back to the earlier part of your evidence. You said that in fact, while you hadn’t had the details of Operation Rapid, you did know that there was something to do with an administrative scheme.

Dave Cox

Yes.

Lady Hermon

So you did know that there was some administrative scheme operating for OTRs. There were cases—you have just confirmed it to us—where in fact you wrote a report to families saying that this suspect, you believed, was on the run in the Republic of Ireland. Did you never think to tie the two things together and ask the PSNI, “Right. We believe that this suspect is on the run in the Republic. I know somewhere—somewhere in the ether—there’s an administrative scheme. Could you tie the two together for me?” Would you not have had that conversation with Hugh Orde?

Dave Cox

No—

Lady Hermon

Or Norman Baxter?

Dave Cox

Because I would not have thought, and I still wouldn’t think, that the fact that somebody had had an administrative letter meant that it trumped the fact that he was wanted. But with evidence, with any evidence—I can’t imagine that they would have sent a letter to anybody if there was evidence, so anybody who was wanted but living in the south of Ireland would not have got an administrative letter if he was wanted. I thought that was the whole purpose of the scheme—for the PSNI to check, “Was this person wanted?”

Lady Hermon

Can you, off the top of your head, in your long term and in setting up the HET, recall any occasion when an administrative letter was set aside and trumped by fresh evidence identified by the HET—any single case?

Dave Cox

No.

Lady Hermon

Correct. That, I think, proves the point.

Dave Cox

No, I’m not sure it does prove the point. If it does, it’s not the point I have meant, because—

Lady Hermon

Well, I know it isn’t the point you mean, but it is—

Dave Cox

Because I don’t think that any evidence put up by the HET has been disregarded because somebody has got an administrative letter. I cannot imagine that would have happened, and I cannot imagine it would happen now.

Lady Hermon

Well, I am so pleased you are so confident, Mr Cox, because Mr Adams asked for an invisible scheme and Mr Cox delivered an invisible scheme. I’ll just ask you this, because it hs been put to me on a number of occasions by some of my constituents. This is a quote: “Loyalists believe they get the HET while republicans get comfort letters.” Is that not a fair reflection of how loyalists have been treated?

Dave Cox

No.

Lady Hermon

Now why do you say that so categorically?

Dave Cox

Because it is not true.

Lady Hermon

And the facts—

Dave Cox

The facts are, quite simply, these. The HET reviewed the cases that were in front of them, and we went where the evidence took us. If there was evidence to take anything further, we developed it as far as we possibly could, and if it was of an evidential nature, it went to the PSNI to take forward. I can give you some figures.

Lady Hermon

That is very helpful; thank you.

Dave Cox

In 2013, when I left the HET—he said, reaching for his glasses—

Lady Hermon

Don’t worry. If you want to leave the papers with the Committee, we’ll read them into the record.

Dave Cox

We had referred 63 cases for further work by the PSNI, and my recollection is that 40% of those were republican cases.

Lady Hermon

And the other 60% were—

Dave Cox

The other 60% were largely around one operation conducted by the HET, which was Operation Ballast, where a small number of loyalists were arrested on multiple occasions or were suspected of many, many offences. Those are my recollections.

Lady Hermon

That’s very helpful.

Kate Hoey

Mr Cox, you obviously don’t like the HMIC report. Of course, a number of people thought it was actually a very good report. Do you accept their statement that the protocols on the referrals from the HET to the PSNI were inconsistent?

Dave Cox

No.

Kate Hoey

You think everything was done absolutely normally in every single case.

Dave Cox

Yes.

Kate Hoey

Why then did it take so long for Operation Trinidad—the murder of the three soldiers—to be referred to the PSNI?

Dave Cox

Which operation was that?

Kate Hoey

I am talking about Operation Trinidad—the murder of the three soldiers—which was referred not that long ago.

Dave Cox

I don’t know, is the answer. I have not been there since September. You are asking me about an operation—

Kate Hoey

It was while you were there.

Dave Cox

Okay. Well, it is an operation name, but, as I say, we had 2,540. I’ve no idea what that particular case is.

Kate Hoey

So you still think that every single case that you looked at, that was referred to you and that officers suggested perhaps might be referred to the PSNI would have been referred to the PSNI? Did you ever overrule other officers?

Dave Cox

Did I overrule other officers? If a case was put up, it would be reviewed by me or my deputy and we would be looking to see: was there sufficient evidence? We would want realistic, evidential opportunities. We were more than delighted to find those. The only reason why anything would be sent back was if, in our professional opinion, there wasn’t new evidence to give the PSNI.

Kate Hoey

What was Mr Johnson’s role in all of this? Who was Mr Johnson?

Dave Cox

Paul Johnson was a senior investigating officer. He ran the Army review teams, and for the last year or so I was there, he was my deputy.

Kate Hoey

And he is no longer there?

Dave Cox

No. He was treated shamefully. He had spent five and a half years helping families, and following publication of the HMI report, his services were dispensed with within two weeks.

Kate Hoey

He had his own company as well. Did he operate with his own company?

Dave Cox

I think all of my staff, bar about six people, were self-employed and registered as a company.

Kate Hoey

Can I ask whether you ever refused a specific request from anyone within the HET to send a letter to Mr McGuinness asking him to make himself available to be interviewed about any particular issue?

Dave Cox

I can’t say that I recall that specifically, no. There is something about a letter to Mr McGuinness; I’m just trying to think what it was.

Kate Hoey

It is just that I know the HET was very involved. You had access to former senior police officers and you had access to Army officers, yet you never seemed ever to go to interview any of those who were quite clearly senior commanding people within the official—

Dave Cox

I would not seek to interview people from that particular organisation on the basis of a chat. Sinn Fein had made it quite clear from the set-up of the HET that it would not engage with us, that it did not support us and that it had no interest in us. I would see no value in going to Martin McGuinness or Gerry Adams and saying, “Oh, can we just have a chat?” about this or that, because it would rebound negatively against the organisation, because we would be used as a political issue. They would say, “Here’s the HET doing this, that or the other.” It would have served no purpose. Had we had any evidence about any issue that we wanted to put to anyone, we would have done it, and Hugh Orde made that clear from the beginning.

Kate Hoey

Thank you, Mr Cox.

Chair

Can I go back to the fact that you mentioned that it was decided not to pursue the case in Northern Ireland against Mr Downey in, you think, 2010?

Dave Cox

I say 2010 because the papers I got from the Committee include a report from Detective Chief Superintendent Hanley which is dated 2010.

Chair

But he received a letter in 2007—

Dave Cox

Who?

Chair

Mr Downey. What we have heard is that he received the letter because the PSNI was not aware that the Met wanted him, which we find hard to believe, but the PSNI wanted him in 2007, surely?

Dave Cox

Did they?

Chair

You have told us that you didn’t write him off until 2010.

Dave Cox

No, I said that the report from Superintendent Hanley was in 2010, in which he refers to the issue.

Chair

There is an e-mail from Paul McGowan dated 23 July 2008[14] that says, “I have just spoken with HET in relation to this matter. HET expressed some concern that Downey was not considered as wanted.”

Dave Cox

Yes. That is the point that I tried to cover earlier. From my conversation with the senior investigator, the investigator who had got the photograph thought that it was new evidence, but it turned out that that had already been submitted to the DPP and had been part of his earlier consideration in 1985, or whenever it was.

Chair

An e-mail from 29 July says, “I will also confirm that they are aware of the Met’s interest.” How can it be that all these e-mails were going around and yet the letter was not withdrawn?

Dave Cox

I don’t know. You would have to ask Mr Baxter that.

Chair

Well, we have asked others. I am wondering about your opinion.

Dave Cox

My opinion is that the HET went on to complete a report in that case. I have spoken to the investigator who completed it and he said that he was satisfied that there was no new evidence. That hadn’t taken the original RUC investigation any further forward, and the PSNI acknowledged that.

Chair

And the Met?

Dave Cox

The Met is out of the remit of the HET.

Chair

But this didn’t come as a surprise to anybody. The Police Service of Northern Ireland was aware of concern about Mr Downey and yet the letter was sent and was not withdrawn. Did discussions take place between the PSNI and the Northern Ireland Office? There was obviously concern. We have it as evidence here.

Dave Cox

I don’t know. I’m not the PSNI.

Ian Paisley

Just on that, in your opinion has Mr Downey—on both the UDR murders and the Hyde Park murders—been very lucky and got away with murder?

Dave Cox

I might ask him what lottery numbers he picks.

Ian Paisley

That’s a yes?

Dave Cox

Yes.

Lady Hermon

Now that the PSNI has commenced Operation Redfield, do you still remain confident that that will have no impact on any of the HET reports that have gone out to date?

Dave Cox

It shouldn’t, because the letters will have been written, I am sure—because Norman Baxter was overseeing it—in good faith at the time. If he said that someone is not currently wanted, they are not currently wanted. If a subsequent review by the HET found further new evidence that was usable, I don’t see that those letters would be of any value at all. There would be new evidence, and the man or woman should be charged.

Lady Hermon

Thank you.

Chair

Mr Cox, you have been very helpful to us. Thank you very much. Oral evidence: Administrative scheme for ‘on-the-runs’, HC 177 6 [1] A link to “The Queen v John Anthony Downey, Judgment: Abuse of Process” can be found here: http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Judgments/r-v-downey-abuse-judgment.pdf [2] The letter from Bertie Ahern to Tony Blair (23 December 1999) can be found here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/Letter%20from%20Bertie%20Ahern%20to%20Tony%20Blair,%2023%20December%201999.pdf [3] The terms of reference of “Operation Rapid” can be found here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/Operation-Rapid-Terms-of-Reference.pdf [4] A link to the Weston Park Agreement can be found here: http://cain.ulst.ac.uk/events/peace/docs/bi010801.htm [5] ‘Proposals in relation to on the runs (OTRs)’, April 2003, can be found here: http://cain.ulst.ac.uk/events/peace/docs/biotrs010503.pdf [6] A transcript of Lord Trimble’s oral evidence to the Northern Ireland Affairs Committee on 13 May 2014 can be found here: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/northern-ireland-affairs-committee/administrative-scheme-for-ontheruns/oral/9593.html [7] A transcript of Shaun Woodward’s oral evidence to the Northern Ireland Affairs Committee on 9 April 2014 can be found here: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/northern-ireland-affairs-committee/administrative-scheme-for-ontheruns/oral/8472.html [8] A link to the transcript of the oral evidence from Chief Constable Matt Baggott CBE QPM, and Assistant Chief Constable Drew Harris OBE, Police Service of Northern Ireland to the Northern Ireland Affairs Committee on 7 May 2014 can be found here: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/northern-ireland-affairs-committee/administrative-scheme-for-ontheruns/oral/9418.html [9] A link to the “Report of the Consultative Group on the Past”, 23 January 2009 can be found here: http://cain.ulst.ac.uk/victims/docs/consultative_group/cgp_230109_report.pdf [10] A link to the email exchange between members of the Historical Enquiries Team (HET) and the PSNI (23 July 2008 to 4 August 2008) can be found here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/Email-exchange-between-members-of-the-Historical-Enquiries-Team-(HET)-and-the-PSNI-(23-July-2008-to-4-August-2008)%20.pdf [11] A link to the email exchange regarding the murders of Thomas and Emily Bullockon can be found here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/HET-email-exchange-regarding-the-deaths-of-Thomas-and-Emily-Bullockon-Sept-2010.pdf [12] A link to the email exchange between members of the Historical Enquiries Team (HET) and the PSNI (23 July 2008 to 4 August 2008) can be found here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/Email-exchange-between-members-of-the-Historical-Enquiries-Team-(HET)-and-the-PSNI-(23-July-2008-to-4-August-2008)%20.pdf [13] A link to the email exchange regarding a piece of evidence in the Downey case (29 July 2010) can be found here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/HET-email-exchange-regarding-a-piece-of-evidence-in-the-Downey-case-29-July-2010.pdf [14] A link to the email exchange between members of the Historical Enquiries Team (HET) and the PSNI (23 July 2008 to 4 August 2008) can be found here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/Email-exchange-between-members-of-the-Historical-Enquiries-Team-(HET)-and-the-PSNI-(23-July-2008-to-4-August-2008)%20.pdf