Oral evidence: Administrative scheme for ‘on-the-runs’, HC 177Morning Session, Tuesday 10 June 2014
Oral evidence, 10 June 2014.
Witness
Barra McGrory QC, Director of Public Prosecutions for Northern Ireland, gave evidence.
Chair
Thank you for joining us. We will crack straight on, if we may. You know what we are looking at. This is the second day of evidence we are taking in Belfast. It might help the Committee if you could give us your recollections of the on-the-runs administrative scheme: where it started, why it started, how it progressed. That might be very useful to us, if you would.
Barra McGrory
As you know, I am here today in my capacity as Director of Public Prosecutions. As such, I am the custodian of all of the records and papers that related to these events from 1999 onwards within the then Department of the Director of Public Prosecutions, which later became the PPS. You will also know that I had another role in all of this when I was a lawyer in private practice. As to that role, I am restricted to some extent by professional legal privilege because my client at that time was Sinn Fein. There is some documentation on public record and I am happy to speak about that, if anyone wishes me to when we get to that point. My purpose here is as DPP. I have submitted to you a written paper that outlines the history of these events from 1999 onwards.[3] It began on 7 November 1999 when my predecessor Sir Alasdair Fraser was approached by the then Attorney-General, John Morris I believe, to enter into discussions about how to resolve this issue. Do you want me to keep talking?
Chair
On the confidentiality issue, we would not seek to press you on individual cases. Correct me if I am wrong, the confidentiality belongs to those individuals.
Barra McGrory
It does.
Chair
Feel free to tell us about the scheme: where it started, how it got going, what it was for and why. If you could continue along those lines—
Ian Paisley
You would be able to give us general answers, though.
Barra McGrory
I can, of course.
Chair
I think that is what I have just said.
Ian Paisley
In terms of general numbers as well.
Barra McGrory
Yes. I have all the papers with me and I think we have the numbers in there.
Chair
That is what I have just suggested.
Barra McGrory
It began in 1999. There were high-level political discussions between the Prime Minister and Sinn Fein.
Kate Hoey
If I could interrupt, Chair. Are you saying that anything you are saying now is from the records that you inherited when you became DPP?
Barra McGrory
Yes.
Kate Hoey
Not from your own personal knowledge of the OTRs, in obviously acting for people who would benefit from them.
Barra McGrory
Yes. I can talk about that as well. My knowledge comes from both sources.
Kate Hoey
So you must be one of the most knowledgeable persons about the OTR scheme in Northern Ireland.
Barra McGrory
Yes. I will have to accept that.
Kate Hoey
Therefore, you have a very important role in the inquiries undertaken by Justice Hallett, us and anyone else.
Barra McGrory
Yes, I do. I have spoken at length to Lady Justice Hallett and her team about all of this.
Kate Hoey
Were you able to talk to her in any different way from how you talk to us, because this is public? Did she ask you about your personal involvement in the OTR scheme from the beginning?
Barra McGrory
We touched on it but the privilege issue applied there, too. Having said that, I do not think that the privilege issue is an impediment, if I may say so, to my giving this Committee or Lady Justice Hallett’s investigation a very detailed overview of the scheme from both perspectives. There is material in the public record concerning my previous role that I am happy to speak about insofar as what it might mean or imply.
Chair
That would be useful. If you could continue.
Barra McGrory
The story begins about November 1999 from the perspective of the Department of the Director of Public Prosecutions. Sir Alasdair was contacted. Actually the Deputy Director was contacted by an official in the Attorney-General’s office and later in the day Sir Alasdair spoke directly to the Attorney-General. Anyone who knew Sir Alasdair will know that he was not only a man of the utmost integrity but he was fastidious in his record keeping and documenting of events. So, we have the benefit of his fastidiousness in that regard.
Lady Hermon
Thank you very much for putting that on the record.
Barra McGrory
He dictated a note on the evening of 7 November 1999 which documented the events on 5 November, in which he said that he had been informed that “Downing Street wished to obtain from the independent prosecuting authority”—who would have been the English Attorney-General at the time—“an undertaking that he would be willing to carry out a review at an appropriate time of the position of persons who were presently abroad but were wanted in Northern Ireland for various terrorist crimes. The Attorney-General”—this is Sir Alasdair’s note—“was minded to give such an undertaking”—
Kate Hoey
Sorry, with the greatest respect, we have got this statement. Are you just going to read through it?
Chair
Kate, could I chair the meeting? I am quite interested in hearing this statement.
Kate Hoey
It is a very long statement—it is five pages.
Chair
If it gets to the point where it is going too long, then I will intervene. But I want it said in front of this Committee, and on the record, what happened and your involvement in that.
Barra McGrory
I do not propose to read the whole paper. I understand Ms Hoey’s concern about that, but this section of it is very important for Sir Alasdair’s reputation and the reputation of the prosecutorial authorities in Northern Ireland, which I feel is at risk of being damaged over all of this. This perspective needs to be put on the public record, if you don’t mind. I will be brief, but this is important. Sir Alasdair noted that the Attorney-General “was minded to give such an undertaking. The director informed the Attorney-General, however, that he viewed the proposal as being fraught with difficulty. He pointed out that, in any event, such cases were kept under continual review by a Committee”—these would be the extradition cases—“comprised of a number of Departments.” He also pointed out that the undertaking that the Attorney was minded to give carried with it an implication that future decisions would be liable to be influenced to the benefit of fugitives. He conveyed this directly to the Attorney-General. He informed him that “it could be damaging to perceptions of the independence of the prosecuting authority and the administration of justice”, and he observed that “it was inevitable that these issues would become public and that any approach should be fully explained in Parliament.” What happened thereafter I will not go into in minute detail, but it is of importance. Sir Alasdair made it very clear in November 1999 that he had “grave reservations,” as the chief prosecutor for the jurisdiction of Northern Ireland, “about any scheme that would give a blanket undertaking, or that would be seen to compromise the independence of the administration of justice in this jurisdiction.” I believe that that materially influenced the Attorney-General of the day in terms of how he then approached the matter. But what happened thereafter was that everything was dealt with on a case-by-case basis. We entered then into the processes, which, if I may say so, had three phases. There was what is termed in the papers as Sinn Fein list one, which was 36 names that was expanded to about 42. Those events went from 1999 to late 2001. In early 2002 it expanded into Sinn Fein two, which was a much bigger list—numbering over a hundred. Then there was Operation Rapid—which we will come to—from 2006-07 onwards. So there were those three phases. Phase one, which was Sinn Fein list one—the list of 36 names—is difficult, because among those names were 17 escapees and quite a number of others who were unlawfully at large and wanted. This provided certain complexities, particularly in regard to the escapers, because those who had served more than two years would also have benefited from the two-year release scheme, so they had to consider how to deal with them. There were those who had not served two years who would have had some time to serve and then there were others who were not escapees but who had skipped bail or who were on the list as well. The Attorney-General and the director had a number of meetings after this, to discuss the way things would be brought forward. It was determined that in respect of each of the names the police would indicate to the director what evidence there was to connect those names to any criminal activity. If the director considered that there was a triable case on foot of what he was given, he indicated that he would prosecute that person. I understand that those individuals then were given no indications to the contrary. In so far as there were people in respect of whom the police said they had no evidence, or very little evidence, then the director said, “Well, on that evidence as it stands I wouldn’t be able to prosecute.” Then there were cases where there were already files in the DPP’s office and they were reviewed; and then of course there was the issue of the prisoners who had escaped who had served their time. Among this group there was the difficult decision to be taken about prosecution for having escaped and for the offences which were committed during the course of the escape, as a consequence of which others had been tried and convicted. In that regard the public interest test was considered, and that is the only circumstance in which the public interest played a part in all of this. From the respect of most of the others the scheme concerned only the evidential test. If I may just talk a little bit about how Sir Alasdair went about applying the public interest in relation to escapees—
Chair
Fairly briefly, because I would like to come back on some of the things you have already said.
Barra McGrory
Okay. Of course at the time—and I think it is important that people understand this—Sir Alasdair, as Director of Public Prosecutions, was subject to the superintendence and direction of the Attorney-General of England and Wales, to whom the powers of the Attorney-General for Northern Ireland had been transferred when Stormont had been prorogued. The Attorney-General was the person who had initiated this discussion. Sir Alasdair, as I have put on the record, had expressed his grave reservations and had suggested that if there was any examination of these individuals it should be done on a case-by-case basis, and the evidential test should apply. However, in the context of the escapees there was a discussion about the public interest and Sir Alasdair sought advice from the Attorney-General. The conclusion was, as a consequence of that dialogue, that the public interest would apply in not prosecuting those individuals who had escaped for that particular offence. In the context of considering the public interest, a range of factors was considered, including the fact that there was a political element to this, in terms of the political negotiations; but it was concluded that that alone would not be sufficient to exercise the public interest in favour of not prosecuting. There were broader considerations, and when an Attorney-General of a sovereign state is engaged in the public interest exercise in the United Kingdom state he undertakes what you call a Shawcross exercise, which is named after an Attorney-General in 1951, which takes into account the broader interests of the state across Departments, so that the prosecuting authority does not take decisions blindly. It takes them with a broad overview. That exercise was engaged in by the Attorney-General of the day, who was John Morris, and the conclusion was that the public interest would be applied only in respect of those cases. It is such a long history from 1999 to 2010 that I think I will stop there and let you ask me questions.
Chair
Can I pitch in with 2001, when the then Secretary of State, Dr Reid, prepared a draft Bill to deal with this issue; why was that necessary? We will ask him that, of course, but from your point of view.
Barra McGrory
Sir Alasdair, I think, was one of the first to point out that to try and achieve what they were trying to achieve, by way of using the normal prosecutorial structures, risked damaging those structures. If Government wanted to seek to bring about a situation where those who, in normal circumstances, would be arrested, interrogated and potentially prosecuted would not be, it would be preferable that that be done by way of open discussion in Parliament and through legislation rather than to seek to employ the prosecutorial structures to achieve that, because to do so risked damaging the reputation and independence of those structures.
Chair
Without naming names, and I am not asking you to, that implies that those people should have been prosecuted ordinarily.
Barra McGrory
It was an extraordinary process. We don’t know whether they should have been prosecuted ordinarily, because the reality of the scheme was that those who would normally have been sought out by the police, arrested and interrogated were not, because they were given the opportunity of remaining outside the jurisdiction or leaving the jurisdiction because of the scheme. That is harsh reality. It is not for me to seek to justify or criticise it; that is the effect of it.
Chair
But did those people, and surely this is the nub of the issue, receive letters saying that they were not wanted?
Barra McGrory
I have no doubt that many people received letters saying that they were not wanted who, in ordinary circumstances, the police would have liked to speak to. That is not to say that people who received letters saying that they were not wanted would automatically or necessarily have been prosecuted. Those are two very different things.
Chair
Indeed, they are innocent until proven guilty. What I am trying to say is, if, for example, the 228 letters that went out went to people who were completely innocent of any offence, and not suspected of anything, there is no inquiry. It is only of interest if people who ordinarily in, let’s say, England, Wales or Scotland would have been taken in by the police, perhaps arrested, and questioned, had received letters, because then, in effect, we have a different justice system operating. That is the real kernel of the concern about the scheme.
Barra McGrory
It is the kernel of it.
Chair
You agree.
Barra McGrory
It was a highly unusual circumstance in the administration of criminal justice—unique, I would say—but it was directly linked to the political circumstances of the day.
Chair
Indeed, but so was the early release scheme.
Barra McGrory
Yes.
Chair
But that went through Parliament and it went through a referendum. Of course, they attempted to bring it to Parliament in ’05 and then dropped it in January ’06, which again is an indication of the unusual aspect of it. Would that be fair to say?
Barra McGrory
Yes.
Chair
It would. Thank you.
Ian Paisley
Mr McGrory, do you accept that in terms of your standing and your status, you are the personification of the poacher turned gamekeeper in this case?
Barra McGrory
You have said that to me before, Mr Paisley, and it is not a term that I would like to use.
Ian Paisley
But you understand what it means. The public out there who are following this look at all the niceties of us as MPs and you as the Director of Public Prosecutions. Essentially, you represent the people who got on this list, and ultimately now you are the Director of Public Prosecutions, who determines whether people are prosecuted. The term “poacher turned gamekeeper” is not meant as an insult, but you are the personification of that; you are in that role.
Barra McGrory
Well, sometimes poachers who turn gamekeepers are more effective gamekeepers than—
Ian Paisley
That might be very true.
Barra McGrory
—others who were not poachers. I will take it as a compliment.
Ian Paisley
Before I consider your specific role, I appreciate what you said about Sir Alasdair Fraser. I understand that, and about the integrity of the office of DPP, no matter who is in there. It is very important for you and your staff that that is on the record, and I appreciate your taking the time to spell that out. Before you became Director, and as a solicitor in Northern Ireland, were you a hands-on strategist in this process, or were you simply a facilitating solicitor?
Barra McGrory
A facilitating solicitor, as I was for all my clients by the way, who numbered many more than simply Sinn Fein or any particular OTRs. I have represented policemen, soldiers, politicians of various descriptions and many individuals not connected with this conflict as a professional. I have discharged my professional duty with independence and integrity, I hope, throughout my entire career, and which I do so now as Director of Public Prosecutions. The role that I played in this was actually quite minimal. It is not significantly any more engaging than the available papers would suggest, and certainly I was no strategist, but I had a role to play as a representative of Sinn Fein rather than the OTRs as individuals, many of whom are clients of other lawyers.
Ian Paisley
In paragraph 7 of the papers that you sent to us you indicated that meetings were held—one on 11th and one on 25th July 2000, and one in August 2000. Out of that, 16 lines were established as to what should be on the list. Did you contribute to the formulation of that list?
Barra McGrory
No.
Ian Paisley
You made no contribution whatsoever? Were you at any of those meetings?
Barra McGrory
Not those meetings, no.
Ian Paisley
Were you at any meetings that would have helped formulate that list?
Barra McGrory
No.
Ian Paisley
So, you simply batted names into the process, as a representative solicitor?
Barra McGrory
Yes. The instructions from Sinn Fein were that they had reached agreement elsewhere as to this process, and they asked me to submit the names on their behalf.
Ian Paisley
So the actual mechanics of this scaffolding were already in place.
Barra McGrory
That’s right. Well, I have nominated as the lawyer through whom the names would be channelled to the authorities, but I had no hand, act or part in the devising of the scheme.
Ian Paisley
In terms then of the people who came on the list and the numbers, did you help to draw up, or refer clients, or indicate to your key client—in this instance Sinn Fein—that here were people who could be added to the list, or did they formulate the list entirely?
Barra McGrory
By and large Sinn Fein formed the list and—
Ian Paisley
“By and large.” Explain that.
Barra McGrory
My memory is that the vast bulk of the names came from Sinn Fein. When it became known that I suppose I was engaged, occasionally someone would contact me directly, but that was very rare
Ian Paisley
Would that name end up on the list?
Barra McGrory
It would. That was very rare. I could only remember it happening on one or two occasions.
Ian Paisley
Okay. Did you help to formulate or shape the argument that there be non-prosecution for public interest in the cases that you identified earlier?
Barra McGrory
No, I didn’t.
Ian Paisley
In terms of the process, as you know, and we are fast-forwarding to the current date, it continued until April of this year, as far as I am aware. Since you became Director of Public Prosecutions, have any of those cases winged their way on to your desk?
Barra McGrory
None.
Ian Paisley
So you have had no dealing with this since being DPP?
Barra McGrory
No. One case was mentioned to me as being under consideration and as soon as the name was mentioned, I recognised it as that of a former client, so I told the Deputy Director and Assistant Director dealing with the matters at the time, and I had no hand, act or part in any consideration of that case thereafter.
Ian Paisley
In terms of the types of people on the list, does Gerry Adams have one of these letters?
Barra McGrory
I don’t believe so.
Ian Paisley
As his former solicitor, he would not have received one while you were his solicitor?
Barra McGrory
I don’t think so. I actually don’t think he is in this category of person at all.
Ian Paisley
Does Martin McGuinness have one of these letters?
Barra McGrory
I don’t believe so.
Ian Paisley
Does Gerry Kelly have one of these letters?
Barra McGrory
I don’t believe so.
Ian Paisley
In terms of the general group that we would call the leadership of the republican movement, could you identify anyone in the leadership of the republican movement who would have one of these letters?
Barra McGrory
No.
Ian Paisley
What about Members of this Legislative Assembly, who are also members of the republican movement? Would any of them have these letters?
Barra McGrory
I don’t think so.
Ian Paisley
You don’t think so.
Barra McGrory
But I am not familiar with all the names on the list.
Ian Paisley
Members of Parliament?
Barra McGrory
I don’t know. I don’t think so.
Ian Paisley
Are you sure about that?
Barra McGrory
I am not sure. I don’t think so. I don’t have the complete list in front of me.
Ian Paisley
Councillors?
Barra McGrory
I don’t know. I don’t think so.
Ian Paisley
Would you be aware of any public representative? Would any of their names jump out to say, “Actually there is someone on the list. I remember dealing with that”, or “They were a client”?
Barra McGrory
No. Listen, when this scheme was set up, lists of names were handed in to my office over a period of years. They were forwarded on to the police, mostly to the police at the time. There came a point when I actually did not have any great personal engagement with it, even when I was a partner in the firm, because it was routine.
Ian Paisley
There are two final matters that I would like to probe with you briefly. You mentioned the names Liam Averill and Patrick McVeigh in the submissions and papers that you have given to us in the circumstances. Did those people receive a letter?
Barra McGrory
I think that Liam Averill was the beneficiary of a public interest decision. I might need to be reminded of the McVeigh situation.
Ian Paisley
By public interest, does that mean that they got a pardon?
Barra McGrory
I think he was one of those escapees in respect of whom a public interest decision was taken not to prosecute—
Ian Paisley
But did he get a pardon? Barra McGrory:—although he escaped at a different time from the Maze.
Ian Paisley
But did he get a pardon?
Barra McGrory
By the way, the office of the DPP had nothing to do with pardons.
Ian Paisley
I am not accusing you—
Barra McGrory
No, but I am not sure if he did.
Ian Paisley
You’re not sure if he did?
Barra McGrory
I don’t think he did.
Ian Paisley
Right.
Barra McGrory
But it is of no—
Ian Paisley
Because he tried to assassinate a Member of Parliament, and was never prosecuted for that.
Barra McGrory
I don’t know, Mr. Paisley. I don’t know.
Chair
We probably ought not to get too far into that.
Ian Paisley
Finally, you made a very telling comment in your opening statement, when you said that the police would like to speak to many of these people but they got letters. As a senior prosecutor in Northern Ireland, and remembering what you said, do you not think that it is incredibly distressing to know that the police would really have liked to speak to many of these people? They could have gleaned evidence that could have led to prosecutions and convictions. I am thinking of the tears of the victims who yesterday sat in the seat that you are sitting in, and that maybe those people could have got real, genuine closure as a result of that. Do you not think that this on-the-run process, to which you have some contribution towards, has genuinely hurt and damaged confidence in the legal process in Northern Ireland?
Barra McGrory
I think that is a statement of fact that I would have to agree with, Mr Paisley, but I am not here to defend this process; I am here as an historian of what happened. It was a process that was conceived by those who were in government of the United Kingdom, and in high-level political negotiations with Sinn Fein at the time. It was considered expedient to do it this way. It is not for me to make a judgment on that. As a prosecutor, I simply have to agree that it is not a process that sits well with the prosecutorial function, and I think that Sir Alasdair knew that very well and voiced his concerns very clearly, as I was at pains to point out earlier. But Sir Alasdair, as Director of Public Prosecutions, was under the superintendence and direction of the Attorney-General of the sovereign state, and it was the Government of that sovereign state who determined this course, not any prosecutor.
Ian Paisley
By the way, you were never a member of Sinn Fein?
Barra McGrory
Never.
Chair
Given what you have told us, Mr McGrory, about the fact that, ordinarily, the police would have wanted to speak to these people and yet those people got letters, you could choose your own words, but would the word “amnesty” apply? Could it apply?
Barra McGrory
No, it couldn’t, because an amnesty implies the wiping clean of the slate, and that is not what happened. What happened is that individuals were given an opportunity to remain outside the jurisdiction or to leave it, or to come back into the jurisdiction with the knowledge that the authorities were not seeking to tap their shoulder. That is far from an amnesty, yet, as I have said, it was a process that did not sit well with the administration of criminal justice. But it was not an amnesty.
Chair
Presumably when the police were asked to review each case, they said, “Okay. Some people we don’t want to speak to, others we do.” Who then escalated that? Who then changed that, which meant that the police wanted to speak to them and yet those people had received a letter saying, “You’re not wanted.”? Who translated that?
Barra McGrory
The names were submitted by my former office to the police. The police then—and I see it from the other side now: from the point of view of the office of the DPP—wrote to the office of the DPP and indicated whether or not they had any reason to speak to these individuals, and, if so, on what basis. Now, the majority of the individuals were in the former category in respect of which there was no evidence, and the police said they at that time did not want to speak to them. Other categories of people included the submission of some evidence and that would be viewed by the prosecuting authority. If they thought that there was a reasonable basis for a prosecution, then that indication was given and those people obviously did not get letters. That is the category, obviously, in which Mr Downey should have been, but we know why he wasn’t. The principal category was the category of person in relation to whom the DPP was told the police had no interest. That is currently being reviewed.
David Simpson
You will understand the revulsion of the general public whenever we received evidence from Drew Harris saying that these individuals who had either received pardons or on-the-run letters could have been involved in as many as 95 or 100 murders or attempted murders. You can understand the revulsion and the moral case that people would take against that. As far as the general public are concerned and speaking personally, this whole system was immoral. We took evidence yesterday from the victims organisations and listened to what they had to say. Their attitude is that because of this and because of the process that you were involved in at an earlier stage of your life or career, they, as individuals, may never now see justice—that is really the bottom line—because of this murky deal thrashed out between Sinn Fein and the Government, the NIO. We have heard evidence from Norman Baxter, who said that he believed that there was an understanding in the NIO that republicans were not to be prosecuted. He outlined a couple of incidents where they had apprehended a number of individuals. Mr Adams rang No. 10 and No. 10 then took their road down to the police to try to get these individuals released. Whenever we look at all this, and we can paint it up whatever way we like as regards why it was done—that Sinn Fein may have jumped off the whole peace process, which I think was a nonsense—it was a murky, dirty deal. We have taken a lot of evidence from different ranks of the PSNI, including former Chief Constables. In all the evidence, we have been told that no one knew anything about this. What is your understanding of the role of the PSNI—or, in the earlier stages, the RUC—in this?
Barra McGrory
The police engaged with this process. You have heard from the current Chief Constable and Sir Hugh Orde; I am not sure whether you heard from anybody else.
Chair
Ronnie Flanagan.
Barra McGrory
Ronnie Flanagan, of course—sorry, I do remember his evidence about this. The Police Service took a decision to engage with the process, also at the request of Government, and it was the Police Service that provided the information to the Director of Public Prosecutions that certain individuals were no longer of interest to them when perhaps they were. But the scheme was based on evidence rather than intelligence, so the indications given to the department of the Director of Public Prosecutions were based on available evidence—a very different thing, of course, from intelligence or information that the police might have had that would have connected individuals to crimes. If there was a flaw in the scheme, it was that the communications were on the basis of evidence rather than information, but the police took a decision to enter into that process, knowing that that was the case.
Lady Hermon
That was the flaw in the scheme.
Barra McGrory
An investigative decision was taken not to pursue information.
Lady Hermon
Just repeat that please, Mr McGrory. The flaw in the scheme was that it was evidential rather than intelligence-based.
Barra McGrory
I said, “If there was a flaw in the scheme”. It is not for me to say that it was flawed.
Lady Hermon
It was a flaw. That was the flaw. I think that is what you said to the Committee, actually.
Barra McGrory
Look, it is for others to say that the scheme was flawed.
Chair
Put it in your own words.
Barra McGrory
The scheme was a politically expedient one to reach a point where a political process—the peace process—could proceed to another level. It was perceived by the Government at the time that it could not do so unless this large number of people who classed themselves as on the run could be addressed—dealt with. The way in which they were dealt with was by way of this scheme.
David Simpson
Can I just ask another question? To your knowledge, why were the Prison Service able to forward the list in July 2001?
Barra McGrory
That would be a list of people who had escaped—who ought to have been in custody but were not, so they were part of this as well.
David Simpson
So that is how they were able to do that. Okay, that is fine. I will come back in a moment.
Barra McGrory
Lady Hermon, if I can say—
Lady Hermon
Yes, of course. Let us retract now.
Barra McGrory
No, I am not retracting anything. I said, “If there is a flaw in this scheme”, but I suppose that if the scheme had not been constructed in that way it probably would not have worked politically. It is not for me to make a judgment on whether or not it was flawed; it is for society and history to make a judgment on that. From a prosecutorial point of view, speaking as a prosecutor, the scheme was flawed in the sense that it submitted names to the prosecution service in respect of whom there was potentially evidence on the basis that the police had no interest in those individuals when, in fact, in other circumstances, they would have done.
Chair
That is a very important point.
Lady Hermon
Can I continue?
Chair
I have a list, so I will get back to you, Sylvia. Oliver first.
Oliver Colvile
Mr McGrory, thank you very much for coming to talk to us. What you have said so far is very helpful. Can you talk me through how you got the job? You were appointed by the Attorney-General. Was that the British Attorney-General or the Northern Irish Attorney-General?
Barra McGrory
The Northern Irish Attorney-General.
Ian Paisley
They are both British, by the way.
Oliver Colvile
Sorry, perhaps I should have put it this way: the Whitehall Attorney-General. Were you head-hunted for the job, or did you have to apply for it by submitting a CV, as most people do?
Barra McGrory
I applied for the job. It was advertised in the press. Under the current justice architecture for Northern Ireland, the Attorney-General has responsibility for the appointment of the Director of Public Prosecutions, but he went about it in a very open and fair way by setting up a selection panel, which he chaired. On it were the Lord Advocate of Scotland at the time, now Dame Elish Angiolini, the then chief inspector of criminal justice, Michael Maguire, who is now the ombudsman, and the then president of the Law Society, Mr Brian Speers. It was a competition, and others were interviewed.
Oliver Colvile
Obviously, you had previous knowledge about the names of the people who had been submitted to potentially receive these letters.
Barra McGrory
It was the furthest thing from my mind when I applied for this post.
Oliver Colvile
I am sure.
Lady Hermon
You did not declare on your application form your involvement in the OTR scheme.
Barra McGrory
There was no question on the application form which would have indicated any need to declare it. In my professional life I have been involved in many, many different types of case, and there was no need.
Lady Hermon
So you were just keeping your fingers crossed that the Mr Downey case would not happen, and therefore the OTR scheme would not see the light of day. Did you just keep your fingers crossed?
Barra McGrory
Not at all, Lady Hermon. I had no knowledge of Mr Downey’s existence until Mr Justice Sweeney’s judgment.[4]
Lady Hermon
But you had knowledge of the OTR scheme and you did not disclose that in an application to become the senior prosecutor, the DPP, in Northern Ireland. You kept that quiet.
Barra McGrory
There was no question on the application form that would have required such a declaration. I have been involved in countless cases and given advice to countless people on very sensitive matters, and there was no basis whatsoever on which I would have been expected to make such a declaration.
Oliver Colvile
What ended up happening is that you got the job and you had knowledge of the people you had put forward, because you had been the gatekeeper for Sinn Fein. That ended up going through, but did you not at any stage know what the outcome was for those people? Didn’t you know whether they had been accepted or denied?
Barra McGrory
No.
Oliver Colvile
In so doing, have you at any stage, as Director of Public Prosecutions, asked the Northern Ireland Office, or whoever you have to go to, who is on that list? If I were the director of Director of Public Prosecutions—I am not a lawyer, so I am talking from a sense of ignorance—I would want to know who was on the list. If you take a case and have to decide whether to prosecute people, you would want to know who might or might not have received a letter that said, “You’re okay, chaps. You have the ‘get out of jail free’ card.” Have you ever asked for that information?
Barra McGrory
My office knows the names of people who got the letters, so there was no need for me to ask. It is all documented, and we have already had one case in which someone claimed he was immune from prosecution as a consequence of this scheme. That failed, so my office prosecuted him.
Oliver Colvile
So your office does have a list of all those people?
Barra McGrory
Yes.
Oliver Colvile
Have you shared that with the Attorney-General for Northern Ireland?
Barra McGrory
He has no prosecutorial function.
Oliver Colvile
And you haven’t shared it at all with the Justice Minister, either?
Barra McGrory
No, he has no prosecutorial function, either. The letters are not an impediment to prosecution as far as we are concerned, and I can come to that.
Oliver Colvile
I find it very curious as a layman that some people seem to know about it but an awful lot of other people, including elected politicians, don’t seem to know about it.
Kate Hoey
Just following on from that, Mr McGrory, do you not feel that the public should know that list of names? I am particularly talking about the victims, who might well want to know whether the person walking down their street has received a letter—as you know, in small communities people know things.
Barra McGrory
That is a difficult question, because you start to get into dangerous territory when you publish lists of names of suspects. Don’t forget that the status of those individuals is that of suspects—that is all.
Kate Hoey
Yes, but the letter is actually saying—you have seen the letter, so presumably you have seen the wording of some of the letters. They are different wordings, we understand.
Barra McGrory
I have since I became Director of Public Prosecutions. My role in private practice, apart from some engagement with Peter Sheridan and the Attorney-General’s office back in 1999, was simply to submit names. I never saw the letters at that time, but I have seen them now.
Kate Hoey
Why were you shown them now? Who showed them to you?
Barra McGrory
Once the whole issue erupted after the Downey judgment, I made it my business to find out everything.
Kate Hoey
To whom did you go to say, “Can I have the letters, please, because I am just the public prosecutor?”?
Barra McGrory
I asked the assistant director in my office who has had responsibility for those matters in recent years to prepare a report for me and to give me all the papers.
Kate Hoey
This may seem really naive, but where is that list sitting? Whose office has it? Who knows the list? Who has the names?
Barra McGrory
We do, and so does the office of the Attorney-General and the Northern Ireland Office because of the way the scheme operated. The DPP expressed a prosecutorial view on lists of names. That view was passed to the Attorney-General’s office in London. The Attorney-General then passed the names to the NIO, which, it now transpires, issued the letters. The office of the DPP had nothing to do with the issuing of the letters.
Kate Hoey
But we all know, for example, the names of the people who were given early release—that went through the parliamentary system—but we do not know this. What is the difference? Publically, everyone knows who got early release, because of the agreement and the parliamentary process, but there was no parliamentary process in all of this. What comes through in all of this and from all the evidence is the fact that this is so secretive—unless you are in the in. Someone like Gerry Adams presumably knows the whole list. Gerry Kelly presumably knows the whole list. Martin McGuinness knows the whole list—
Barra McGrory
They do—
Kate Hoey
Peter Robinson does not know the whole list.
Barra McGrory
No.
Kate Hoey
Do you not think then that there might be a little feeling of something being one-sided in Northern Ireland?
Barra McGrory
Okay. If I can deal with this in this way: the difference between those who were released under the early-release scheme and these individuals is that the people released had been convicted in a court of law and given prison sentences—they were released. These other people had the status of suspects—
Kate Hoey
But some had escaped—
Barra McGrory
Some had escaped, yes, but I presume those names are in the public domain.
Kate Hoey
Well, they weren’t imprisoned for nothing.
Barra McGrory
No. I think those names are in the public domain. I do not think that there would be any difficulty in releasing those names.
Kate Hoey
Could you send us the list of those names and, indeed, the whole list? Do you not think that this Committee should have the names of the whole group of people?
Barra McGrory
I’d be obliged if I didn’t answer that right now. I may need just to think about that. Unless there is some legal impediment to that, I see no difficulty in principle. As I say, these people have the status of suspects. They are analogous perhaps to people in other categories whom the police suspect of having committed, say, sexual offences or something—it would be wrong to publish lists of suspects who have not had the benefit of due process. In normal circumstances, that is frowned upon, but these were highly unusual circumstances. What you say about the likes of Sinn Fein individuals knowing the names—of course they do, because they were the ones who put the names forward.
Kate Hoey
Yes, but it still comes across to the public as being very one-sided.
Barra McGrory
And that is exactly what Sir Alasdair was very prescient about in November 1999, when he was asked to engage with all this, although in a different form.
Kate Hoey
It would be very helpful if you could consider sending us the names. May I ask one final question? In terms of being Gerry Adams’s solicitor all through the years, do you know anything about any agreement that might have been made? Yesterday, we heard one of our witnesses say that they felt that Gerry Kelly thought that he was above the law—one of the reasons why he would not come to this Committee. I asked whether they thought that perhaps Gerry Kelly, Martin McGuinness and Gerry Adams feel that they are above the law because there has been another hidden deal somewhere, that whatever happens they will never be prosecuted.
Barra McGrory
I assure you that there is no such deal.
Kate Hoey
But you would not be involved in whether any of those people were to be prosecuted, because of your earlier role as solicitor.
Barra McGrory
I recuse myself from any consideration of a prosecution in which I think I have a conflict of interest.
Chair
If you were still Sinn Fein’s solicitor, which you are not, would you see any reason why they should not appear in front of this Committee, in public?
Barra McGrory
That is a matter for them—between you and them. I do not really want to engage in that.
Nigel Mills
May I take you back to a comment you made a little while ago, Mr McGrory, about how you did not see these letters as an impediment to prosecution? Will you just explain that comment? Maybe I misunderstood.
Barra McGrory
The letters are an indication to individuals at the time that they received the letter that they are not sought or wanted by the authorities in the investigation of any crime. That is the height of them in terms of their prosecutorial value or legal status, so in respect of any one of those individuals, if evidence subsequently becomes available—I think the letters are couched in such terms—the situation changes and they can now become sought after. In terms of the evidential situation at the time the letters were issued, there was no prospect of a prosecution of those individuals at that time. Of course, Mr Downey got one by mistake—he shouldn’t have received that letter—but in respect of those in relation to whom the letters were accurate at the time, they should all now be aware that the letters may not still apply.
Nigel Mills
Okay. That brings us to the question of what is new evidence. How would you, as a prosecutor, define new evidence?
Barra McGrory
In a number of cases, for example, DNA, which is more advanced than it was then, although it existed then, is produced to connect individuals to crimes. That was not in existence when letters may have been issued, and that then changes the evidential situation. Examples include DNA found on cigarette butts at crime scenes, blood traces or perhaps fingerprints. There are a range of circumstances in which evidence might become available and, in some cases, in respect of which evidence was overlooked in the original investigations.
Nigel Mills
So if there was a fingerprint in a file that was not spotted when the review for the letter was issued, and it was subsequently found, do you think that is new evidence?
Barra McGrory
Yes. That is strong new evidence.
Nigel Mills
Even though it was available to the Crown in all its various forms at the time? Even though it was on the files and should have been found if a competent review had been done earlier or even at that time? If it is subsequently found, that counts as new evidence?
Barra McGrory
Very much so, and a number of cases have been successful on that basis. A number of historical prosecutions have been successful—unfortunately, few in number, but—
Nigel Mills
With letters saying, “You’re not wanted for any pre-1998 offences.”
Barra McGrory
The letters were couched in terms that, on the available evidence at the time you received the letter, you were not wanted for questioning, so those people may have considered themselves free to come into the jurisdiction, but they did so at their own risk. So if evidence emerges now, those individuals can be arrested and connected to those crimes. If I may say so, there is a tendency sometimes to overstate the legal value of those letters. I say that very carefully, because I understand that the process through which those letters were issued is, none the less, as I have accepted, highly unusual. But, nevertheless, those letters are of limited value to their recipients.
Nigel Mills
So, if you, now, as a new prosecutor, were to re-review the file and say, “Actually, I think there is enough evidence to prosecute”—even if it is pretty much the same file as when the letter was issued—could you change your mind and now prosecute?
Barra McGrory
Absolutely.
Nigel Mills
So, even if there is no new evidence—
Barra McGrory
Sorry, no new evidence? The prosecutor takes his or her evidential decision on the basis of the evidence available, so, at any time, a new prosecution decision can be taken—if there hasn’t been a prosecution before—on the available evidence. The fact that somebody may have got one of those letters is not considered an impediment to taking a prosecution.
Chair
Can the public interest argument change?
Barra McGrory
It can, but it is very rarely employed in this situation. I cannot conceive of any terrorist-related case in which there would not be a public interest to prosecute. That is not to rule it out entirely, but there would be a very strong public interest in prosecuting any such case.
Nigel Mills
Effectively, these letters are, then, in your view, largely worthless.
Barra McGrory
Yes. They are not, maybe, entirely worthless, but I think they are largely worthless. That is my view as a prosecutor. Mr Downey’s was worth something, because he had been misled into thinking there was no evidence. If you look at the judgment of Mr Justice Sweeney, the only basis upon which the abuse of process application was allowed in the Downey case was that he not only got a letter in error in 2007, but there were two opportunities to rectify that—one in 2008 and one in 2009—that were not taken. So the view of Mr Justice Sweeney was that the degree of culpability of the state in its mistake was so great that it was an abuse of process of the court. That must be a very rare circumstance, because it was not only mistaken, but the state knew it was mistaken and, on two separate occasions, it repeated the original mistake. In terms of the value of a letter like that in an abuse of process case in other circumstances, I think, as a prosecutor, it is virtually worthless if the evidence is there. And especially now that any recipient of those letters ought to know that.
Naomi Long
Barra, thank you for your evidence so far. Can I explore that last point with you? You said that the letters are not an impediment to prosecution. You also said that people came back at their own risk. Why did you feel that it was so important to pursue the letters in the first place in your previous job?
Barra McGrory
You know, I did not really pursue anything—
Naomi Long
We have read the correspondence where you did pursue them—quite aggressively at one stage in one of the letters that you sent.
Barra McGrory
I do not think that I ever did anything aggressively.
Naomi Long
Well, doggedly, then, if you prefer, but you certainly pursued them.
Barra McGrory
I have represented any client I have represented with all due vigour and, if I was instructed to make representations to seek a certain outcome, I did so. And I do so now as a prosecutor. That was then and this is now.
Naomi Long
I understand that, but the now that we are dealing with is on the basis of what happened then, so this is quite important. Why were these letters so important to your clients? Indeed, why did you pursue them so vigorously if you believe that they really do not change anything in terms of the ability to prosecute the individual? They could have returned at their own risk at any time; they went on the run voluntarily, so they could have waited to see whether the police would arrest them or question them or whatever. Why were the letters important if they did not change whether someone could be prosecuted?
Barra McGrory
They were politically important to the Prime Minister and the leadership of Sinn Fein to move the process to the next stage. Obviously, since the police at the time had engaged in the process of giving the letters, there was a certain amount of confidence in certain quarters that they were no longer being pursued. I think that confidence will now have abated.
Naomi Long
You mentioned also that you have prosecuted someone who was in receipt of a letter, or that someone has been prosecuted. Is that correct?
Barra McGrory
We have, yes, shortly before I came in. And another prosecution is under consideration. In fact, it is under way, but the recipient of the letter has challenged the prosecution on the basis of the receipt of that letter. So this issue will be tested in the court imminently.
Naomi Long
On the previous occasion, was that a successful prosecution?
Barra McGrory
Yes, it was. But it was a case that you knew well—
Ian Paisley
He didn’t have the letter.
Barra McGrory
He did not get the letter, although he understood that he should have got one.
Naomi Long
We know the case. So actually no one has been successfully prosecuted who has been in receipt of a letter.
Barra McGrory
Not yet.
Naomi Long
So the case being prosecuted at the moment will be the first test of this since Downey.
Barra McGrory
I really am not in a position to speak about it.
Naomi Long
I understand that. You said that you had no role in developing this scheme and that your role was simply in passing the names to the scheme that was already in place. Is that correct?
Barra McGrory
That is correct. The scheme was devised by politicians.
Naomi Long
And you had no role in developing or advising around that.
Barra McGrory
Well, I did give some advice at the time, but I was not involved in the discussions or negotiations that came up with this scheme.
Naomi Long
But you gave advice as to the basis on which the scheme might operate.
Barra McGrory
Yes.
Naomi Long
Were you the individual who introduced the notion of the article 3 right as part of the grounds for developing this scheme?
Barra McGrory
No, I have no idea where this came from. If you look at Mr Justice Sweeney’s judgment, there are two separate sentences that have been conjoined in public perception. The first says that Mr Baxter, at a meeting, referred to the fact that there had been a letter from a solicitor, and that they needed to engage with the process. There is then a full stop, and the next sentence goes on to say that the review was on the basis of article 3 of the European convention on human rights.[5] I have no recollection of ever making that claim on anybody’s behalf, and nobody can find any record of it, so nobody knows where it came from. Perhaps Mr Baxter can enlighten us.
Naomi Long
Am I not correct in saying that at the time we took evidence from Norman Baxter, correspondence was produced from yourself, citing article 3 rights? I am working from recollection here, so I do not want to be too dogmatic about it.
Chair
We will look at the information.
Naomi Long
My understanding was that article 3 was cited in that correspondence, which is why I am asking the question. As things stand, do you believe that article 3 rights are engaged in dealing with those who went on the run?
Barra McGrory
I don’t know. Article 3 of the European convention deals with safeguarding against torture and inhuman and degrading treatment, and I know of no construction of it which would support this scheme. I do not know where that came from. I say that with great hesitation because maybe I made such a submission at some point, but I do not remember it. Nobody has produced it. I think it is a mistake on Mr Baxter’s part.
Chair
We will check that.
Naomi Long
I would like to because it is quite important. You do not know who introduced that argument or defence into the mix?
Barra McGrory
I don’t. I hesitate slightly because documents have been produced to me which I did not recollect. I started engaging with this 15 or 16 years ago, so I would always have that caveat.
Lady Hermon
Can I come back to your very interesting evidence about the status of the OTR letters? You have said clearly and repeatedly that in fact the letters were not an impediment to prosecution.
Barra McGrory
That is my view as a prosecutor.
Lady Hermon
So would you recommend that the 228 recipients of these comfort letters should simply shred them? If they are no impediment to prosecution, what value do they have?
Barra McGrory
I would argue, as a prosecutor, that they are of no value to them.
Lady Hermon
How do you reconcile that with the evidence that we received from Mr McGinty that if people who received these letters were going to prosecuted afresh—anew, or for the first time—they would have to be given some notice so that we could avoid the argument of an abuse of process? Is Mr McGinty wrong?
Barra McGrory
No, although I have no doubt that if evidence emerges concerning someone who is a recipient of one of these letters and we bring a prosecution, they will seek to raise that argument.
Lady Hermon
Absolutely. How do we avoid a Downey outcome and a Downey judgment? We will have abuse of process arguments every time.
Barra McGrory
Because the Downey case was unique—well, let us hope that it was unique—in that he was the recipient of a letter when he should not have been. The basis of the abuse of process in the Downey case—I know that you are aware of this, Lady Hermon—was that he acted to his detriment in receipt of a promise which, he was unaware, was a mistaken promise. That was the very narrow basis on which Mr Downey succeeded in his argument. In relation to the vast majority of these people, the letters themselves stated that they were only as good as the day they got them, and that if any evidence emerged, they could be prosecuted.
Chair
So did Mr Downey’s.
Barra McGrory
Yes, but Mr Downey’s letter was mistaken in that he was told there was no evidence, but there was evidence. Everybody else was told that there was no evidence, and there was no evidence when they got their letter, but evidence may emerge.
Naomi Long
What about the lost fingerprint argument, for example? That would be evidence that did exist.
Barra McGrory
We are starting to get very legalistic.
Chair
Back to Sylvia.
Lady Hermon
Are you saying categorically to this Committee that you are not fearful of an abuse of process argument arising if you seek to prosecute any recipient of an OTR comfort letter?
Barra McGrory
All prosecutors should be fearful of abuse of process arguments, but I feel they are abuse of process arguments that could be rebutted. It is for a court to determine that, and there will be an opportunity in the not-too-distant future to test that. I am hesitant to say any more about it, Lady Hermon, but it is my professional opinion as the chief prosecutor of the jurisdiction that these letters are of not great legal significance.
Lady Hermon
Not great legal significance.
Barra McGrory
Of little legal significance.
Lady Hermon
Of little legal significance. We are getting there.
Barra McGrory
I will try to phrase it a little more elegantly.
Lady Hermon
So do they keep them, or do they not? Do they shred them, or not?
Barra McGrory
Anyone who is in receipt of one of these letters—
Lady Hermon
Do they sleep easy in their bed?
Barra McGrory
They ought not to be sleeping easy in their bed.
Chair
Could I come back to the advice that you gave on the scheme? You admitted that you gave advice on the scheme. Did you at any stage suggest that it should merely be an evidential test and not the intelligence test? Did you insist that it was an evidential test rather than the wider intelligence-based test—that the police had no intelligence on your clients? Was that the sort of advice? You hesitate.
Barra McGrory
I don’t think I can answer the question.
Lady Hermon
Why?
Barra McGrory
First, it strays into issues of privilege in terms of what discussions may or may not have taken place between me and my clients, and I can also say that I have not sought to refresh my memory of those discussions.
Lady Hermon
You have wilfully not sought to refresh your memory so that you can come before a Committee and say you don’t recall.
Barra McGrory
No, no, no.
Lady Hermon
Why would you not seek to refresh your memory when you know that you are giving evidence to Lady Justice Hallett and when you know that you are giving evidence to this Select Committee? What is the advantage of that?
Barra McGrory
Because those discussions are covered by legal professional privilege and I do not think it would be appropriate that I do so.
Lady Hermon
The interesting thing of course is that you are unable to refute categorically that you gave advice on whether in fact it should be an evidential test or an intelligence-based test. That is why it is interesting.
Barra McGrory
I am not even allowed to confirm or deny it.
Lady Hermon
After you became DPP you knew that there is a statutory duty—a statutory duty—to uphold public confidence in the impartiality and independence of the criminal justice system in Northern Ireland. I am very concerned about your earlier reply to my question that in your application to become the DPP of Northern Ireland, you didn’t disclose it because there wasn’t a question on the application form. But with hindsight you now know how very damaging the whole revelation around the Downey case has been to public confidence and the rule of law in Northern Ireland. Surely, you should have been circumspect when you were applying to become the DPP, in which we have to have complete confidence—all sides of the community have to have complete confidence in you as DPP—and that should have been disclosed on your application form.
Barra McGrory
I have to say, Lady Hermon, that I am disappointed that you ask that question in such terms because the implication is that it is not appropriate that I have been appointed Director of Public Prosecutions when—
Lady Hermon
That is not what I said, Mr McGrory.
Barra McGrory
The implication is clear in the question because you are being critical of the fact that I did not volunteer in the application form, when there was no basis in that application form on which I could have volunteered it, that I had been involved in this particular professional engagement. With the greatest respect to you, I don’t think it is an appropriate question.
Lady Hermon
I have the greatest respect for you too, Mr McGrory.
Chair
Order. We have covered this earlier. Is there anything new coming out? [Interruption.] Well, I do not want another question on this point because we had three or four earlier. Sylvia, is there anything else?
Lady Hermon
Thank you. I do not want Mr McGrory to twist my words at all.
Chair
No, but we have covered this point.
Lady Hermon
No. I am sorry Mr Chairman. The point is that this scheme has been seen publicly to benefit friends of Mr Gerry Adams. It applied only to Republicans, so it has become very divisive. What we need is public confidence in the DPP’s office. I personally have confidence in you, Mr McGrory, and I am putting that on the record. I just think that it should have been declared at the time of your application so that it was public knowledge, but you decided not to.
Barra McGrory
It was not the fact—we are covering this ground again—that I took the decision not to declare something that ought to have been declared. I am saying very clearly that there was no basis in the appointment process upon which any of the applicants—there were several others—would have been expected or asked to have declared any professional engagement that they had before, in terms of who or what they advised. That included other defence lawyers and other prosecutors.
Kate Hoey
Did it come up in the interview? You told us how you were interviewed by this very wide panel of the great and the good. Did it come up?
Barra McGrory
No.
Kate Hoey
No one asked you about your past at all?
Barra McGrory
Yes, in terms of my life’s experience and my legal experience.
Chair
Order. We are now 12 minutes over time and I want to bring in one more question. Sorry to cut you off, but we are over time anyway.