Oral evidence: Administrative scheme for ‘on-the-runs’, HC 177Afternoon Session, Tuesday 10 June 2014

Oral evidence, 10 June 2014.

Witnesses

Phyllis Carrothers, Kenny Donaldson, Stephen Gault and Shelley Gilfillan, Innocent Victims United.[11]

Chair

Thank you very much for joining us, you are aware of the issue we are looking into and we are very grateful to you for coming in this afternoon. I do not know who the main spokesman is. It would be useful if you could introduce yourselves very briefly and tell us a little bit about what you do and your background.

Kenny Donaldson

My name is Kenny Donaldson, I am the spokesman for Innocent Victims United. To my left here is Phyllis Carrothers, who lost her husband, Dougie, murdered by the IRA. To my right is Stephen Gault, whose daddy was murdered in the Enniskillen poppy day bomb. Stephen himself is a bomb survivor. To my right here is Shelley Gilfillan who hails from Castlederg country, a little bit further up in fact. Shelley lost her uncle, Lexie Cummings.

Chair

Would you like to tell us very briefly about your group? What do you seek to do?

Kenny Donaldson

Innocent Victims United is an umbrella organisation for 21 victim and survivor member groups, particularly across the south and west of Northern Ireland. We have a combined membership of in excess of 11,000 people, so it is a significant organisation in that regard. What we seek to do is offer a strategic voice to victims and survivors, in terms of how they engage with the political system and with other strata within society to come together with a collective voice. I suppose we have an agenda which certainly folk in Northern Ireland would be aware of. In fact, we brought out a victim’s contract in the last couple of months in the run up to the European election in which we challenged the parties that were standing here to sign up to the contract which we very much feel would transform the way victims’ issues are dealt with in Northern Ireland and the wider United Kingdom.

Chair

Can you give us a brief idea of what sort of things are in that, what are you looking for in particular?

Kenny Donaldson

It is not going to be a surprise to those of you around this table that the definition of a victim continues to be a hotly contested issue in this country and we have lobbied for many, many years on that matter. I suppose we want to make it clear that we come from the perspective that we acknowledge that there are terrorists and, indeed, their families who are going to continue to live within this society. Any state or Government is required to provide for its citizens. What we feel is obnoxious is that those individuals are facilitated within the current definition of victim and survivor, because they are not victims and survivors. We also would be very clear on the issue of language revisionism, whereby—aside from this table—sometimes in this country you can barely use the word “terrorist” or “murdered”. There is almost an attempt at airbrushing going on and it is all rounded under the terminology of conflict, which certainly folks here would not accept was what happened in Northern Ireland. We also have a very principled position in terms of the Maze and our opposition to a peace/conflict transformation centre being built there while the old prison architecture would remain. We have consistently fought that for over a decade. Particularly for the GB representatives around the table, we also feel that it is an absolute disgrace that victims and survivors services are effectively determined by postcode across this nation of ours, because there are many, many individuals within your own constituencies in GB who are crying out for help and support, and we have linked into many of those over this last number of years. I think there is a real issue there around how victims and survivors are treated in GB. That is a snapshot of some of the issues.

Chair

Thank you. Obviously, we are here to look into the on-the-runs scheme. Perhaps you would like to give us your thoughts on the scheme itself.

Kenny Donaldson

We have a range of points that we would like to make today and rather than me hogging this, I would like to bring in colleagues. Each of my three colleagues here is going to raise particular matters that were of principal concern to them. Stephen is going to start us off.

Stephen Gault

Good afternoon, everyone. Initially, when I first heard about the on-the-runs, I was at a CVSNI—the Commission for Victims and Survivors for Northern Ireland—conference, very ironically, on truth, justice, acknowledgement and reparations, in the Stormont hotel. When we came out after the conference and saw the footage on the news of the whole OTR scandal, it was very poignant for me because the footage that they were using on Sky News was of the Enniskillen poppy day bombing, in which my father was murdered, along with 10 others, and myself injured. My feelings at the time—I didn’t know what to think. I can honestly say that I broke down on the way home in the car. I couldn’t control my emotions. It was just a retraumatisation of everything I went through that fateful day in November 1987. I didn’t sleep for two or three days afterwards, not knowing whether this could possibly be, and more than likely is, the people involved in the Enniskillen poppy day bombing. I would like to make the point, too, that nobody has ever been convicted for the Enniskillen bomb. My feeling is that at least two people have received these letters of comfort, so in the future—we always talk about getting justice—what happens if, the same as Mr Downey, someone is brought into a court of law, and he produces the letter? Where is the justice for my father and the other innocent people who were murdered, not only in Enniskillen, but in the countless other acts of terrorism throughout Northern Ireland and further afield? I have to say that I was very upset, very hurt and very let down by the British Government—the Government which I looked up to all my life. So yes, I have very mixed emotions about the whole thing.

Kenny Donaldson

Phyllis is going to come in now, just to give a little bit of a backdrop. Phyllis was one of the RUC widows who lobbied Tony Blair back in 2005, and in fact, went to Downing street. She has a very first-hand experience of how that all has factored out now.

Phyllis Carrothers

My husband, Dougie, was a part-time member of the RUC reserve, and he was murdered in an under-car booby-trap bomb outside the front door of our home on 17 May 1991. Regarding the OTRs, I just feel so betrayed and deeply hurt. As Kenny has already said, I was part of a delegation that went over to Westminster in November 2005. We spoke to all the various political leaders and I ended up in the afternoon with our main target, No. 10 Downing street, where we met our Prime Minister, Tony Blair, and Peter Hain. The meeting was quite formal and courteous, but the mood visibly changed once we told our stories—the four of us who were victims. Mr Tony Blair was visibly moved whenever we showed him childhood photographs. I appealed to him, saying just, “Prime Minister, could I appeal to you as a family man?”, and I showed him a photograph of my three children with their dad just a couple of Saturdays before his murder. As I say, the Prime Minister was visibly moved. We had our meeting and our time was up, and we went out and faced a barrage of press interviews, shortly after which Mr Hain came out and told us that the Prime Minister was indeed very moved by our stories. It was a few days after this that Sinn Fein withdrew their support from the Bill unless the provision for the security forces was withdrawn. Mr Hain made a statement in the House of Commons to the effect of withdrawing the Bill, largely due to a tidal wave of moral disgust. He said that “the visit…by the RUC George Cross widows and parents had been strongly instrumental in persuading the Government that the legislation was morally offensive.” So you can imagine how I felt earlier this year; I just couldn’t believe it. Disbelief. I turned the TV up to make sure I was hearing what I was hearing. I just feel utterly betrayed by the top politician in the land—the Prime Minister of the then Government. I just don’t know now who to trust. Who can you trust? What else is there to come out of the woodwork? These letters were being sent out from 2001, I understand. We had the meeting in 2005, and I just feel deep hurt and trampled upon, and my husband’s memory trampled upon, along with all the other husbands and family members who were murdered. What else is going on behind the scenes?

Chair

Thank you.

Kenny Donaldson

To reinforce what Phyllis has said, we have a short DVD that we want to give each of you today. We were not able to show it within the rules of today, but it will explain very well Phyllis being interviewed last February and her understanding of OTRs in terms of that meeting she had in 2005. Anybody who says that victims and everybody in this country knew about this scheme will need to watch that particular interview, and it will become clear that no, they did not.

Shelley Gilfillan

In December 1971, my brother was murdered. I can accept—I don’t want to, but I can accept—that the people who murdered him will never be convicted. I don’t like it, but I can now accept that. In 1982, my uncle was working in his daily job. He was a part-time member of the UDR. He went out to have his lunch, and he was gunned down in the centre of Strabane at lunch time. I have two HET reports here, one for my brother and one for Lexie Cummings. When I heard this news, I was totally devastated. I still can’t come to terms with that; I’m finding that very difficult. I would like to know how exactly did this Downey case occur and what level of cross-communication existed between the Metropolitan police, the PSNI and other forces at the time with respect to terrorism and prevention. What is going to be done to ensure that this is not going to happen again? How are we victims going to be given some kind of reassurance? At the moment, no one has thought about the victims; this is all about terrorists. It is about people who go out and break the law. My upbringing was you do not break the law. If you break the law, you are in a court and you are sentenced. I can’t understand this. I just fail to know how people can go out and murder other human beings and be handed a letter to say, “That’s okay. That’s all right.” “Thou shalt not kill” is one of the commandments. Surely to goodness, in this day and age, in any country, this should not have taken place. This leaves us, the victims, back at square one again—back to those days. We do not want to have to go there again. I never wanted my children to be brought up—I was brought up very equally—listening to bombs and shootings and murders. I would not like that. Castlederg was one of the most bombed towns in Northern Ireland. There are 29 unsolved murders in that small town. How on earth can that happen? There is something wrong somewhere. I would also like to know whether there is a political hand in policing here in this country, because it seems that the police have their hands tied behind their back. Everyone is very quick to blame the police for this, that and the other, but they are not allowed to do anything, so why blame them? It is not their fault. I would like to read you something out of Lexie’s report. I can name the man who is on the run. I suspect he has had a letter—a love letter. The report states:“A review into Lexie’s murder was carried out by the ‘On the Run’…review team, in 2003, following William McMonagle’s inclusion on a list of OTRs supplied by Sinn Fein to HM Government.” That happened in 2003. The report goes on to say: “Following this review, the DPP rescinded the direction of December 13 1982 to prosecute William McMonagle and directed no prosecution against him.” The new direction was made on 7 October 2003, so it is quite obvious that, at that stage, something was rattling about somewhere. I learnt of that in 2010, when I received that report. That is all I have to say.

Chair

Thank you very much to all of you for those accounts. Perhaps you will allow us to ask some questions.

David Simpson

Thank you, Chairman, and thank you all for coming today. All of us, whenever we have listened to the groups that have come in from the victims sector, would need to be very hard individuals not to be moved by the stories. I remember Phyllis being over in London. She made a very good point about 2005. You got lorded in No. 10 with coffee and tea and all the rest of it, and yet this was going on. We as MPs who stand in the House of Commons feel equally betrayed. I have suffered before—my family have been murdered by the provos—and unless people have that pain and anxiety, they do not know what victims are going through, but as MPs, we feel betrayed by the then Government, who made this dirty, murky deal with the provos. It is disgraceful that it has taken place. You have asked a number of questions. We are hoping to get to the bottom of this. I think that Mr Blair, Mr Hain and one or two others—maybe Mo Mowlam—were involved. It was to placate the provos so that they did not go out of the peace. We know what it is all about, but victims today—I speak to a lot of victims groups and we have had them here in the Committee—feel betrayed. They were promised justice, and today that justice seems so far away. Stephen, you mentioned Enniskillen. I remember it well. People who I knew died in Enniskillen. Will they ever get justice? God only knows. It goes right to the heart of society in Northern Ireland. There are few families in Northern Ireland—no matter who they are—that are not affected, because we are a close-knit community. Whether they be security forces or just someone in the wrong place at the wrong time, we need answers. We appreciate the fact that victims feel let down and betrayed, and it again goes back to your point, Phyllis: who do you trust any more? When it goes right to height of senior Government members and then the Committee learns that 18 royal prerogatives were given as well, does that mean that the people who murdered your husband and family and your father in Enniskillen got letters or royal prerogatives? Did the ones who murdered my family get royal prerogatives? Those are questions that we are trying to get to the bottom of. It is alleged that a member in the Northern Ireland victims’ forum has received an OTR letter. What would your feelings be on that?

Kenny Donaldson

Colleagues here have aptly said that it is the non-knowledge that is most concerning. Obviously, speculation has always been a factor in Northern Ireland over the years, but how can people be expected to sit on a forum with individuals about whose backgrounds they are not confident? Stephen Gault, who happens to sit on the forum—everybody knows who Stephen is. People know his story and how his father was murdered and how Stephen himself was injured. We cannot say that for everyone who sits on that forum, which is a big problem. In terms of the CVSNI and how it is actually viewed across our constituency, there are big, big problems.

David Simpson

So it is a question of trust?

Kenny Donaldson

Very much so.

David Simpson

And of not knowing who you are sitting alongside and who is receiving these things. I am going to finish as I know that others want to get in. In relation to the outcome, you know about the Committee’s remit, but what do you want the outcome to be? What outcome do you want ultimately to see coming from this Committee?

Kenny Donaldson

The first point is that in many ways we come here with a heavy heart today, because it has been insinuated in the last 24 hours that OTR letters were handed out as recently as March to three further individuals. Now, that is the first point that this inquiry and others need to come to terms with, because if that is the case, there are serious implications not only for the NIO, but also potentially—if I was the Justice Minister, I would also be wanting answers, including from senior officials within the Department. After the massive uproar at the time and the assurances given on 7 March by the Secretary of State that no OTR letter had been issued since 2012, how can it be that we now have this situation? We are not by any stretch of the imagination taking the gospel of Sinn Fein on this—they are making that insinuation—but, by goodness, it needs to be examined. We also appeal to folks here today to please compel Sinn Fein along with Tony Blair and Peter Hain if they refuse to co-operate with this inquiry. Otherwise, what is it? It is the rest of us talking in the dark once again. The main protagonists will be outside the process, which is no good for any of us.

Chair

On that point, Mr Blair has expressed a willingness to engage with the Committee, as has Mr Powell. It is a matter of finding a date. I think that I am right in saying that a date for Mr Hain to come to the Committee is established for next week. For Sinn Fein, we have only just over the weekend received the letter explaining their views and why they did not want to come. It is full of misapprehensions, so the position is that I will be writing back to them and setting out what the work of the Committee is and so forth, and we will take it from there. We are in a process that we hope to follow through.

Lady Hermon

Thank you so much for coming in, albeit with a heavy heart. It is really important that we have your evidence and your contribution on the record, and that those in Sinn Fein and those who have received the OTR letters hear from relatives of those who were murdered during the troubles, and can look at you sitting here today and reflecting on how damaging the scheme has been. In the very helpful briefing that was prepared for us, one sentence jumped off the page: “The OTR letters fiasco is merely the straw that broke the camel’s back.” You are nodding in agreement with that. Shelley, the extract that you read on Lexie Cummings was really important. When was that report from the HET given to you?

Shelley Gilfillan

In 2010.

Lady Hermon

I thought that was what you said. It makes reference to the OTR team, doesn’t it?

Shelley Gilfillan

Yes, it does.

Lady Hermon

Does it say where the OTR team was based?

Shelley Gilfillan

No.

Lady Hermon

Just read it again, Shelley—it was fine. It was just really striking.

Shelley Gilfillan

It just says that a review was carried out by the OTR review team in 2003.

Lady Hermon

It doesn’t identify that the OTR team was based in the PSNI headquarters?

Shelley Gilfillan

No.

Lady Hermon

So it was economical with the—

Shelley Gilfillan

It was somewhere.

Lady Hermon

We know from previous evidence that in fact there was an OTR team in the police headquarters. Just read the next sentence, please.

Shelley Gilfillan

“Following William McMonagle’s inclusion on a list of OTRs supplied by Sinn Fein to HM Government”.

Lady Hermon

The then director of the HET, Dave Cox, gave evidence to this Committee in which he assured us that fresh evidence would “trump”—his word, not mine—an OTR letter. Reading Lexie’s report from the HET, is your impression the opposite—that the OTR letter would actually have trumped any evidence that was produced in relation to the gentleman you have named?

Shelley Gilfillan

I was truly shocked when I read this. I was under the impression that this man was still on the run. It is quite obvious, now—

Lady Hermon

Yes, it is obvious now when you have heard the Downey judgment and you know that these OTR comfort letters have been in existence for 228 OTRs. So you have now concluded that Mr McMonagle is in receipt of an OTR letter?

Shelley Gilfillan

Yes.

Lady Hermon

Could I just ask you this, then? This morning we were taking evidence from the Director of Public Prosecutions, Barra McGrory[12]—I don’t know whether you had the opportunity to listen to any of his evidence. Mr McGrory, while a solicitor, was of course the main legal adviser acting on behalf of OTRs when they were making the applications to the police for these letters. But as the DPP—I am quoting exactly—he said, “Letters are not an impediment to prosecution.” That was his message from the DPP’s office now—the OTR letters are not an impediment to prosecution. How do you react to that reassurance from the DPP, the head of the prosecution service? Are you reassured by that?

Shelley Gilfillan

No.

Lady Hermon

That is a very spontaneous reply—why do you feel that, Shelley? You obviously feel that in your heart and in your bones.

Shelley Gilfillan

Yes, I do. There is the trust, as Phyllis said—who do we trust? We have been told so many lies. It is very difficult to trust.

Kenny Donaldson

In many ways, people are making promises that they hope they will never have to check out on, because until such a case is actually presented before the courts, where the evidence exists, in many ways people can say what they want to say.

Lady Hermon

Do you think the words are easy to say—“Letters are not an impediment to prosecution”—but that doesn’t mean to say you are going to get a prosecution?

Kenny Donaldson

Where victims are concerned, I think the point has come where blank cheques have been signed enough times, and people have given broad assurances around any number of issues over the last 16 or 17 years, but the proof has been in the eating of the pudding, and it hasn’t been what it said on the tin. For victims, the trust is not there any more. With the greatest respect, if anyone states at this stage that these letters are effectively meaningless, until such time as a case is before the courts, that can’t be tested.

Lady Hermon

Thank you for that. Can you comment on the fact, and it is a fact, that the Chief Constable and the leadership team within the police now have already established a large team—we understand it is 19 strong—of experienced, dedicated investigators? These are PSNI officers who are going to review every single one of the OTR letters. In response again, Shelley, when you say that you feel the police have their hands tied, they are certainly not indicating that their hands are tied; they are saying very boldly, both to us and publicly,[13] “We have a review team called Operation Redfield. It consists of 19 dedicated officers who have been pulled off other serious investigations to focus exclusively on these OTR letters and the recipients.” Does that help to build some confidence and trust? And there’s this huge pause before anybody replies—that is really worrying.

Shelley Gilfillan

It is very difficult, it really is. It is a very difficult situation to be in when you have heard news about letters given to murderers.

Lady Hermon

Even though they are going to review every single case again?

Shelley Gilfillan

Yes, they are going to review every case again, but are they allowed to review anything?

Lady Hermon

Operational independence. May I suggest something? I am looking at Phyllis here as well. I remember the visit to Downing street, and I had occasion to remember the date. You remember it as November; I remember it as 23 November, because it was also the date on which it was announced that the Royal Ulster Constabulary would be given the George Cross, so I had reason to remember the date particularly. As a group, may I suggest something that might be helpful? I am really worried by the phrase “the straw that broke the camel’s back”. We must build that trust back up. You are the victims. You have to live your lives. You have your children and grandchildren—you, Mr Donaldson, are too young for grandchildren, but we hope for the future. We have to build confidence in the criminal justice system here in Northern Ireland. Have you as a group asked for a meeting with the incoming Chief Constable? It might be helpful to talk about Operation Redfield, although obviously not in detail. Has that been considered?

Kenny Donaldson

We have indeed issued that request. I think that when we say that the straw broke the camel’s back, where we are coming from there is that our position at the start, when this OTR scandal first broke, was that we felt there was a need for a full public inquiry. Our position has not changed. We have had all manner of inquiries—four or five in total—which have had their own particular purpose and remit. To be honest, what victims want to know once and for all is, from when negotiations first began between the Government and the IRA in 1972, and what followed thereafter, we need everything out on the table once and for all, because people need to be clear about what was done and why it was done, and, indeed, what has been committed to being done. The concern for folks around this table, and others, is that this is not the end by any stretch. There are individuals in this country, particularly in border areas, who operate mafia empires. The very strong belief is that those individuals are receiving a form of immunity—they were allowed effectively to job diversify from terrorists to mafia gangsters. That is the sort of situation we are dealing with here. If anybody thinks about papering over the cracks regarding this issue, that is part of the overall problem. The royal pardons issue was referred to earlier, and 10 years of records going missing around the period when a peace agreement is being developed. As they say, the dog in the street knows what’s going on there. Against that backdrop, unless there is full disclosure and accountability once and for all, you are not going to get back the trust of the individuals around this table, or others. It ain’t going to happen.

Lady Hermon

What weight will you as a group attach to the report by Lady Justice Hallett? She has very generously given up her time to come over and conduct an inquiry, albeit in private, to call in and ask those who were at the heart of this to account for what they have done, including Sinn Fein, who did go, of course, because it was a private session. It is a pity they are not here in a public session, but they did co-operate with Lady Justice Hallett. Is that not significant at all, Kenny? You seem very dogmatic in your approach.

Kenny Donaldson

We will look at what comes out there, but folk around this table need to understand that there is a wider background to all this. The 1998 peace agreement was signed, wherever people stood on that. The point is that in 1998 society in Northern Ireland understood those individuals to be terrorists released on licence. Sixteen years on, those individuals are equated in law as victims, the same as the individuals around this table. That is the nub of all of this. So the OTR scandal, to be perfectly honest, as ugly and whatever else it was, did not come as an entire shock to many people.

Lady Hermon

It didn’t?

Kenny Donaldson

No.

Lady Hermon

It came as a complete shock to me. I think Phyllis said—

Kenny Donaldson

What I would say is that it did not come as an entire shock in the sense that people believed that anything was possible, if you see where I am coming from, because of what had happened up to that point—some of what has happened over the last number of years. Victims have been the collateral damage. Was the peace process inclusive of victims? That is a pertinent question to ask, and I do not believe that anyone around this table can realistically answer yes. Was it inclusive of victims?

Lady Hermon

Today is not the day for that debate.

Naomi Long

Thank you for coming and giving us your evidence. I have a few questions to ask to all of you. Shelley, could I ask you a question first, just based on the extract that you read from the HET report? You mentioned in the extract that you read that, when they reviewed the case, they had rescinded the previous direction to prosecute and directed that there would be no prosecution. Does the HET report give any rationale or reason as to why that decision to rescind the original direction was made?

Shelley Gilfillan

It is quite obvious that this man, McMonagle, was on a list.

Naomi Long

They said he was on the list, and they said that the case was reviewed as a result of him being on the list, but did they give any reason, such as lost evidence, change of circumstance, death of a witness or anything like that, that would have suggested that there was a substantive reason why they would have changed their direction to prosecute to a direction not to prosecute?

Shelley Gilfillan

No. Why this man got away was—Lexie’s case was the very first case to go up in court. The law had changed where things had to be countersigned. And that was how this man got away: on a technicality. Something wasn’t countersigned. He got away the first time and he was re-arrested on the steps of the courthouse. There was another technicality and he got away again, but this time there was a motorbike waiting for him outside. If he was innocent, why did he run?

Naomi Long

There is nothing in the report that offers any explanation as to the change in decision other than the fact that his case was reviewed by the OTR review scheme?

Shelley Gilfillan

No.

Naomi Long

We have had a number of people in front of us over the last few days, particularly from victims’ organisations, who have given very powerful and, I think, very important evidence to the Committee. In all of this, there has been at one level political discourse about whether this was a necessary part of the peace process or not. We will all have varying views on that matter, but what I think has been to some degree lost is the voice of those who have suffered as a result of the process, so it is important that we have been able to put that on the record. I noted down some of the words you used. You talked about uncertainty, the retraumatising effect of it and the fact that justice has been denied, which is of course different from justice not being able to be done—there is a distinction. You spoke of being betrayed and hurt and of your trust having been damaged. I repeat those things because they are quite important, because when we have taken evidence from some of the politicians who have been involved in this, there has not been a recognition at some level that it has been as damaging as that to the individuals who have been directly affected. It is important that we acknowledge it. I want to ask you a question that I asked David Scott and Ann Travers yesterday. There were two elements to the scheme. There was the review of those who were on the run and the issue of the letters. If you take the scheme at its most benign, the assumption is that those letters were simply a statement of fact and nothing more than that. I believe, according to the evidence that we have had this morning, that one of those may well be tested in court reasonably soon, so we will find out whether the Downey case is an anomaly or part of a pattern. So there were the letters themselves and then the second element of the scheme was the secrecy that surrounded it and the deceit that accompanied it at all levels. Can I ask, and I realise that it is a difficult question, but which of the two is it that has affected you, as victims, most profoundly? Is it the fact that a scheme was devised and operated, or was it the fact that it was done in such a secretive manner, with no oversight and with no public accountability? Which of the two has been the most damaging in terms of your experience?

Phyllis Carrothers

I have to say the secrecy. For me, to sit—just as close as Lady Sylvia and I are sitting at the minute, and maybe a bit closer—and for the Prime Minister and I to look at each other across the table, for him to have not just given us a categorical assurance, but one in type, and to then realise umpteen years later, or four or five later, that that wasn’t the case. I think what hurts me, and I am only speaking personally here, is this drip feed of the truth. If I was faced with the truth and the processes, I think, perhaps given time, I could come to terms with things. You hear something now and further along the line is there going to be something else, and maybe previous to the OTR letters—I just can’t think off the top of my head, I’m that nervous. It is this drip feed of this leaking of this information that has eroded my trust and confidence. I am only speaking for myself.

Stephen Gault

I agree with Phyllis. It is the secrecy of the whole thing going on behind people’s back. It was done in 1997. The then Prime Minister had an opportunity to hold a full inquiry into the Enniskillen poppy day bomb, but for the sake of the peace process, which came a year later, declined that opportunity of an inquiry where the family might have got some justice or some truth. Then in 2001, he devised the OTR scandal. It is the whole secrecy that went on within the British Government and terrorists that is the sickening thing.

Phyllis Carrothers

It is just the lack of transparency.

Naomi Long

I expected that that would be your answer, but I think it is important to put it on the record because I don’t think that there has been an acknowledgement yet from those who were involved in devising and operating this scheme that actually the secrecy matters. The fact that it was not disclosed to people, the fact that people were in some way deceived and feel abused as a result of that, I don’t think has really hit home, so I think it is important to put it on the record. The other issue that you raised was the uncertainty, this sort of drip feed of information. How important is it to you at this point, in terms of trying to rebuild some kind of trust and confidence in the system, that there is full disclosure now from Government about all of the various schemes that may or may not be operating in dealing with the past? How important to you is it that they now come clean and are open and transparent about all of the things that they have been doing over the last 20 years or so?

Kenny Donaldson

I would certainly feel that there would be uniformity of view here that that is crucial. I would also say that, and this needs to be borne in mind—I know it goes outside the realms of this inquiry—our neighbouring state must provide that disclosure particularly around matters concerning those of us who live in border areas. There is a big issue there for both states to step up to the mark. With the OTR legislation—maybe it is the wrong language to use—there was a fair fight of sorts because Phyllis was able to go over as someone to lobby the Prime Minister against that legislation actually being introduced. Ultimately, the then Prime Minister didn’t pull it necessarily because of what those widows had done and their bravery; it was actually, again, a sop of sorts to Sinn Fein, but it was open. This was not an open fight. This was a dirty fight without gloves on. For any individual within Government to have the arrogance to believe that because they are elected they have carte blanche to do those most deceitful of things is unbelievable. No equality impact assessment was carried out in 2005 on how that scheme was going to affect victims, and there certainly was no equality impact assessment carried out on how the OTR administration scheme was going to actually affect victims. So they were never factored into the process. This was about feeding people who needed to be kept on board a process.

Naomi Long

I have one final question. I apologise, because, after I ask it, I will have to leave. I don’t mean any discourtesy, but I have to be somewhere else. From your perspective, how important is it that everyone involved in the OTR process gives evidence to this Committee, including Gerry Kelly, who was the go-between in this process? How important is it to you that he puts his side and his version of events on the record and is questioned in this inquiry? Is that important to you as victims?

Phyllis Carrothers

It is important to me as a victim. I just want to enable myself to have a better understanding of the process. Part of the problem—maybe this is too simplistic—is that victims have existed outside the whole process for so long. It has not been victim-centric in any way from my perspective. We are being made sacrificial lambs. I don’t want to be too emotive about it, but that is the black and white way I see it, so I would welcome the participation of everybody involved in order for myself to have an all-round view and to be better informed myself. We have to bear in mind transparency and accountability and whatever needs to be implemented from that.

Oliver Colvile

Thank you very much for coming to see us. It is a very moving story that you have told us. You have my commiserations for all that has happened. You talked at some length, and quite rightly so, about how you all want the truth. Which is more important: the truth or justice?

Phyllis Carrothers

The two have to go hand in hand. I don’t think you can have justice without the truth, or truth without justice.

Kenny Donaldson

There is a word that champions both of those terms: accountability. And there is very limited accountability.

Oliver Colvile

And you feel there is a lack of accountability—I think that is very clear from what you have said—so we now have to try to find a way of trying to resolve this. One of the suggestions that has been made—I talked a bit about it yesterday—was the idea of having a truth and reconciliation commission. I am not convinced that that is the answer. It was different in South Africa, because there was a complete change in political culture, whereas that has not really happened to the same extent here. So how do you think we can make that move forward? Do you think that a truth and reconciliation commission would be helpful to try and produce the results? How do we move it on from here? What do you physically want to do? If you had, say, five actions that you would like us to press the Government to do, what would they be? What are the five?

Kenny Donaldson

The first thing that I think we are all agreed on is that there certainly should be no amnesty for pre-1998 troubles-related crimes, which has been mooted by senior individuals in authority here—hopefully Peter Hain will be before this Committee—and we do not accept that. We would want the Government to appraise the past 16 years and the roll-out of the Belfast Agreement, because the agreement that people signed up to—those who did support it—is a very different agreement from what they actually got. Side deals have existed as annexes to that agreement, so there needs to be an appraisal of what has happened, and sometimes you have to go back before you can actually go forward. People say that Northern Ireland is at peace. Are we going to have a sustainable peace without there being justice? Justice must be worked through in all its ugliness. Our position, which we as an organisation want to get across, is that whether it involves individual members of the security forces who have dishonoured the code and engaged in acts of criminality, or republican or loyalist terrorists, they should all be treated equally before the law. What we also want very much for victims is an acknowledgement and the rewrite of what has been allowed to happen. We have seen processes in the last number of years and we talked earlier about language revisionism. In a sense, this whole mess that occurred for 40-odd years to the outside world is barely recognisable to those who actually lived through it. This was terrorism and it needs to be called that loudly. We want people in the Government to deal with that. The definition of “victim” is crucial, and we believe that there is a way in which a definition can be revised to cover those who are innocent victims of terrorism and the actions of individual members of the security forces. Terrorists and their families still have to be dealt with, but they can be dealt with through other processes and structures without their obnoxious inclusion in the definition of “victim” and “survivor of terrorism”. That is wrong.

Kate Hoey

Thank you for your submission, which I have read with great interest, and the one that you may have seen from Aileen Quinton, who lost her mother at Enniskillen. One bit of your submission that stands out is: “Let us never forget that peace is not the absence of terrorism, but the presence of justice.” In a way, that almost sums up everything you have said. I want to ask you a little more about your organisation. Do you receive any funding from anyone?

Kenny Donaldson

No. Innocent Victims United is the umbrella organisation for 21 other victims groups, many of which do receive funding. It is, if you want to call it this, a lobbyist-based organisation, and in many ways it is not a bad thing that we are not funded.

Kate Hoey

You go to the forum, and Stephen is a member. Let me be clear, the forum has a definition of “victim” that includes, for example, the Shankill bomber.

Kenny Donaldson

Yes. In law, the definition in the 2006 order—

Kate Hoey

And you are campaigning to get that changed. Of course, it would not be the definition of “victim” in the rest of the United Kingdom and in specific legislation here.

Kenny Donaldson

What we are saying, and to those around the table here who are GB-based representatives, is that within your constituencies, whether in London, which had the Hyde park and Harrods bombings, or in Birmingham, individuals are obviously equally affected by this OTR issue. The definition change may have been doing the rounds for many years, but people have skirted around it. It actually is the root cause of all our difficulties here. If the moral compass was rebalanced—it has gone totally out of kilter—we could start building a proper foundation for moving forward. We appeal to those of you around this table to consider that we are talking about having a new round of dealing with the past, and while that involves the local parties here, there is obviously an interest from the two Governments. What needs to be understood is that until we have an accord across all the participant political parties that the use of violence, whether present or past, is illegitimate in the furtherance of a political objective, we are not going anywhere because while people continue to justify what they did, that is what is hurting victims daily.

Kate Hoey

So this is your paragraph about wanting all the democratic political parties to say that the use of violence in furthering a political objective was never and is never justified.

Kenny Donaldson

Very much so.

Kate Hoey

And some of the other victims groups agree with that?

Kenny Donaldson

I suppose that across the 21 groups attached to ourselves, that is certainly the agreement. Outside that, we have a lot of support—I think it is true to say—across the churches and civic society. I believe a silent majority wants that.

Kate Hoey

Am I right that the Victims Commissioner, who is paid quite a lot of money and is leaving soon, does not agree with that?

Kenny Donaldson

I suppose that the Victims Commissioner would say that she is required to apply the law of the land, which is the 2006 order, but we certainly would have issues about her unwillingness to use the term “terrorism”, because the Terrorism Act trumps that. There has been an unwillingness to call what here actually was. I grew up in South Armagh, in Crossmaglen, and there were the crosses around the countryside and other border areas over the years, particularly around the late ’80s, early ’90s, and they read, “My brother is not a criminal”. We need to wake up and realise that what the last 20 years has been about is the decriminalisation of the terrorism campaign. That is the bigger issue in the whole of this, and we are sleepwalking into that.

Kate Hoey

Do you think there is an attempt to rewrite history?

Kenny Donaldson

Very much so.

Kate Hoey

And the on-the-runs are becoming part of it. We are not going to have—at the moment he is refusing to come along. Is part of that rewriting of history people not being willing to speak publicly in an official Committee?

Kenny Donaldson

I think that for broad society and particularly for victims, there is this sense that there is no accountability. There seems to be one element of this peace process—one constituency, one interest group, who are able to be placated time and time again. We had the Haass process where, as we understand it, that particular political party insisted that the very narrative of terrorism could not be included within that document. It is at that level, so it is inherent and intrinsic through everything that we do. This OTR inquiry is but the latest. This has been ongoing for many years. So people need to get to grips with what has been happening, not simply what is on our doorstep now.

Kate Hoey

Thank you.

Chair

Okay. We are out of time. Thank you very much for coming and sharing your experiences with us and giving us your evidence.

Kenny Donaldson

We would just like to express our appreciation as victims of having the opportunity to come and speak to you directly. That has not often been the case over the years. There is a great deal of respect in that we were given that opportunity. Examination of Witnesses

Witness

John Larkin, Attorney-General for Northern Ireland.

Chair

Thank you, Mr Larkin, for joining us. You are very welcome. You know what we are looking into, so I won’t give a long preamble, but may I just clarify one or two points? You were appointed by the First and Deputy First Ministers. Is that correct?

John Larkin

That is right.

Chair

And you in turn appoint the DPP and, in this case, you appointed Mr McGrory.

John Larkin

Also correct.

Chair

What was your role before you become Attorney-General?

John Larkin

I was a barrister—a QC—in private practice, practising mainly in constitutional and administrative law, and human rights.

Chair

Can I just start, then, with the issue we are looking at: the OTR scheme? Have you had any involvement with it at all?

John Larkin

No, I haven’t, and I have been careful. Obviously I am aware of the deliberations of this Committee, but I have tried not to follow them too closely lest I acquire a secondary knowledge, because obviously what the Committee is interested in from me is my primary knowledge, and I have no primary knowledge of the on-the-runs scheme.

Chair

When did you become aware of it?

John Larkin

I suppose when everybody else did, through media and principally through the Downey decision by Mr Justice Sweeney. I think there was a sense that people were aware of the discussions that had culminated in the abortive legislation to which reference has been made. Then there was rather an impression that the issue had rather subsided, but I had the sense—and obviously I was in private practice at the time, not following the issue closely—that there was something going on. But in terms of the material elements of it and the detail, that is something which I certainly was unaware of.

Chair

So you heard it on the media.

John Larkin

Essentially.

Chair

You did not receive a phone call telling you about it.

John Larkin

No.

Chair

Okay. What are your feelings about it now?

John Larkin

I suppose that is perhaps not primarily for me—it is a matter for the Committee to form its judgment on—but I think that reference has been made, either directly or indirectly, to the suggestion that I threw out last November, summarised as drawing a line under our past. I think that that certainly prompted discussion—indeed, I think a useful discussion—but that is at one end of the continuum. That is a very public process and it is an invitation to engage in a very public debate about an issue. I think—and certainly having heard a little of the previous witnesses it is apparent—that one of the great concerns is the relative secrecy of the process. I think there are two elements, when one strips it down. There is firstly simply letting someone know that there are no active proceedings in contemplation on the basis of a certain corpus of knowledge at a particular time. But then this is the bit that, oddly enough, troubles me—I do not think it has received as much attention—which is saying to someone, “Look, you are wanted,” with the implication, “Don’t come back.” I think that gives rise to issues under section 4(1) of the Criminal Law Act (Northern Ireland) 1967[14] and also the common-law offence of attempting to pervert the course of justice. Obviously, on the one hand, if one is dealing with someone who has made it absolutely clear that they are not coming back and you happen to pass on to that person that it is not safe for them to come back, neither of those offences may be committed, but the issue, certainly it strikes me, is at large.

Chair

You are quite right to say it is the secrecy which has offended victims and victims’ relatives and friends, and just a few minutes ago, and indeed yesterday, we established that from the people who were in front of us. That was one of the main reasons why we decided to hold this inquiry, because the judge-led inquiry, for all its value, is in private, but this is in public. What do you think we will find?

John Larkin

I have given up calling jury verdicts and I have given up calling judicial decisions in advance, so I certainly would not presume to have a stab at what the Committee might conclude. One piece of information which I suppose I should bring to the attention of the Committee is the very recent decision of the Grand Chamber of the European Court of Human Rights in the case of Margus against Croatia.[15] It is a decision of 27 May this year, and this is a decision where Mr Margus benefited from a statutory amnesty in respect of his activities during the Bosnian war, and his prosecution for the killing and wounding of civilians was stayed pursuant to that amnesty. To cut the matter short, the Grand Chamber of the European Court of Human Rights held that to accord such an amnesty was inconsistent with the duty of states under articles 2 and 3 of the European convention on human rights.[16] That is a factor that the Committee may well wish to bring into its deliberations.

Chair

That is very useful. Given that, what is your view of the value of the letters that are held by people?

John Larkin

Again, I will be careful. I gather there is a variety of texts. I have seen none of those texts directly, but if there is a careful letter, hedged around with the appropriate lawyerly reservations, simply saying, “As things stand at present, we have nothing against you,” it seems to me that there is no difficulty, when material comes into the possession of the police and the prosecuting authorities, for action to be taken.

Chair

Can I press you further on that? In an answer to a question from Mr Mills, Mr McGrory said that if, let us say, there was a fingerprint on the file that was not discovered at the time that the letter was sent, but had subsequently been discovered, he would assess that as new evidence that would therefore render the letter obsolete. Would that be your advice?

John Larkin

Yes, the letter would be overtaken by events.

Dr McDonnell

Even if the fingerprint was there all the time.

John Larkin

The relevant issue is the discovery of the fingerprint. If it had not been known about, but subsequently is known about, then—

Dr McDonnell

What if it was known about but overlooked?

John Larkin

Then you are closer to the Downey case and to the disposition of that.

Chair

That is my question. If Mr X comes back to the United Kingdom waving this letter and then, subsequent to that, this fingerprint is found, it is going to be a very fine call, given the precedent of the Downey judgment.

John Larkin

There is a tolerably clear distinction between material that is known about but whose effects, however innocently, are misstated, and material that exists but is not known about. I suppose it is the nature of many criminal trials to depend on evidence that has existed since the commission of the crime, but almost ex hypothesi is not known about until some time later.

Chair

That is slightly more equivocal than your earlier answer.

John Larkin

Not at all, Chair; it is responding to a specific issue. The case that you put to me was that a letter is sent and then new evidence—the fingerprint—is discovered. That is quite clear. The letter is overtaken by events.

Dr McDonnell

In the case of DNA, which has fallen into the same category, DNA testing has upgraded. Does that constitute new evidence, even though the DNA material is very old?

John Larkin

That is a very good example. I think it is a clear case of new evidence. A classic example would be low copy DNA. The bloodstains exist and are known about, but it is not possible at point A in the continuum to make anything of them; at point B, it is.

Chair

The evidence was presumably there in the Downey case.

John Larkin

Again, I express no view on the evidence in the Downey case.

Chair

I am sure this is something we will come back to, if not today then in the future.

Lady Hermon

It is very nice to see the Attorney-General in front of this Committee this afternoon. As I have explained to my Committee colleagues in private, Mr Larkin was, once upon a time, a student of mine in the law faculty at Queen’s. Even then he took a great interest in human rights and the European convention on human rights, so I am not one bit surprised to hear it quoted this afternoon.

John Larkin

I am terrified in case I am asked questions about EU law.

Chair

I am sure Mr Larkin benefited greatly from the experience.

Lady Hermon

It is my claim to fame that John Larkin is the Attorney-General. The evidence given to us by the DPP this morning was wide ranging—I don’t know whether you have had an opportunity to see any of it.

John Larkin

I have not. Aspects of it have been drawn to my attention, but I didn’t hear it all.

Lady Hermon

It would be interesting to know which aspects were drawn to your attention. Am I right in thinking that the DPP is appointed by the Northern Ireland Attorney-General?

John Larkin

He is.

Lady Hermon

So you appointed Mr McGrory as the DPP?

John Larkin

I did.

Lady Hermon

He was appointed in 2011 and you were appointed the previous year, 2010. Is that correct?

John Larkin

Yes.

Lady Hermon

I do not know if it has been drawn to your attention that Mr McGrory explained to the Committee this morning that in his application, while there was not a question about something that he should declare that might undermine confidence in the public office he was to hold, he did not declare that he had any involvement as a solicitor in advising OTR clients. Is that concerning to you as the Law Officer who appointed him to the highest role within the prosecution service in Northern Ireland?

John Larkin

I have to say no. Let me briefly explain why. Obviously a solicitor in private practice will be involved in a variety of pieces of work that will be subject to legal professional privilege. As long as the solicitor, or the barrister for that matter, discharges his or her duties properly and professionally, the nature of the work, the sulphurous or not nature of the client, would not give rise to any concern—

Lady Hermon

Sorry, can I interrupt you, Attorney-General? Even though we now know, courtesy of Mr Downey’s case—and perhaps Mr Downey was the one who was unlucky—that there has to have been some perception or belief that what happened to Mr Downey would not have happened to any of those who were recipients of the OTR letters. Surely to goodness it is a problem when we now have a Director of Public Prosecutions who knew from his past, having represented these OTR clients, that this was a secret scheme. You actually used the words “relative secrecy” of the OTR process. I am not sure why you labelled it relative secrecy if it was a secret scheme. It was an invisible scheme at the request of Mr Gerry Adams. Once appointed, the DPP knew that if this ever saw the light of day he was going to have to take himself aside and could not look at this case or that case. What if we have a DPP who potentially could not look at 228 OTR cases? Is that not a concern to you?

John Larkin

There are obvious practical issues in the scenario that you sketch. As you will know, an important feature of our employment law is an insistence on merit-based methods of appointment. I can tell the Committee that through a fairly conducted process, in which I was assisted by the person who is now the police ombudsman, and the former Scottish Lord Advocate, Mr McGrory came out ahead. Once he is appointed, then he must properly discharge his duties. If that means that there are actual or perceived conflicts of interest, that work must be done by his deputy, who has by statute all of the powers that he has.

Lady Hermon

Thank you for that. Mr McGrory also summarised what he thought about the impact of the letters having been sent to some of his former clients. I am sure they will be delighted to know that he said to the Committee today that the letters are not an impediment to prosecution by the DPP.

John Larkin

That is interesting. In the case that we have discussed, in so far as the letters are simply accurate statements of fact, bearing the particular date that they do, then that is undoubtedly correct. The complicating factor that arose in the Downey case was that Mr Downey was told that he was not being actively sought when it appears that he was.

Lady Hermon

Yes, but is it not the case that if any other OTRs are now sought for prosecution by the DPP because these letters are not an impediment, every single lawyer will use an abuse of process argument to defend their client, courtesy of Mr Downey? These letters actually have a different status post the Downey case. Is that not the case?

John Larkin

I think the letters that, like the Downey letter, are inaccurate but relied upon, to the detriment of Mr Downey, as Mr Justice Sweeney held, are capable of being relied upon. A letter that says simply, “At present we have nothing against you,” but later evidence emerges is not capable of being so relied on. That is not in any way to detract from the ingenuity of lawyers, who will of course take every available point that is open to them on behalf of their client.

Lady Hermon

Yes, and you did say that you were not a gambling man and that, in fact, you had given up—

John Larkin

Indeed. Not, obviously, that the Committee would expect me to pass judgment on the judgment of Mr Justice Sweeney, but it is interesting to observe that in the evaluation that the judge engages in, there is no explicit balancing of the article 2—possibly article 3—rights of the next of kin of the deceased.

Lady Hermon

Have you had any conversations post-Downey judgment with Dominic Grieve, the Attorney-General?

John Larkin

Yes.

Lady Hermon

You have. Specifically about the OTR scheme?

John Larkin

No. It was a general conversation last week—

Lady Hermon

As recently as last week—so there has not been any communication since the Downey judgment was published?

John Larkin

No. Again, that should not—

Lady Hermon

Did you not seek to find out something about this?

John Larkin

That should not be a surprise, because I do not have a prosecutorial function. It would be quite a different matter, I assure you, if I had the responsibilities of the non-devolved Attorney-General for Northern Ireland—that is, the English Attorney-General ex officio discharging the functions of the Attorney-General for Northern Ireland. Then, as you know, there was the power of superintendence and direction of the DPP. That ceased in April 2010, with the devolution of policing and justice. So you are absolutely right to hint that, if I had prosecutorial responsibilities, I would—I can assure you of that—have wanted to know about this at the earliest possible opportunity.

Lady Hermon

Would you have checked the legal position—because I am quite sure that you did—when the Secretary of State originally said that this was a devolved responsibility, then changed her mind and said, no, it was a reserved responsibility? Have you checked the legal position?

John Larkin

This is the delicate issue, which the Committee will be familiar with, of the conventions around Law Officers’ advice. I have to decline being drawn into this.

Lady Hermon

I am not asking you for the advice; I am asking you: do you know whether it is a reserved matter or a devolved matter? I am sure you have checked the law since the Downey judgment.

John Larkin

I prefer not to be drawn, bearing in mind the convention.

Lady Hermon

That is talking in circles. Forgive me, Attorney-General, I am asking a straight question. I am not asking about the legal advice—I am not going to ask you, did you ask yourself in the mirror, “What is the legal advice here, Attorney-General?”—I am just asking you if you checked the legal position after the Downey judgment. Was this a devolved matter, or was it a reserved matter?

John Larkin

No. I know that this appears hugely unhelpful, but—

Lady Hermon

It does. It certainly is hugely unhelpful.

John Larkin

But you are moving into the territory, for reasons I cannot explain—

Lady Hermon

So for reasons you cannot explain—

John Larkin

The Law Officers’ convention is that neither the content of Law Officers’ advice, nor the fact that it has or has not been sought, should be disclosed.

Lady Hermon

I am not actually asking you whether you sought legal advice; I am asking you—

John Larkin

No. It is whether advice is sought. You asked me if I checked the position—

Lady Hermon

Yes. Did you check the position for yourself? I am not asking if you advised anyone else.

John Larkin

If you will—I would have no call to check it for myself, because it does not sound on my current duties.

Kate Hoey

It does sound very strange. You are the Attorney-General for Northern Ireland. There is all this furore. You have made a statement a few months earlier calling for an amnesty, or discussion of an amnesty. Then this all blows up, which begs the question: did you actually know about that?

John Larkin

Let me correct you. I studiously avoided the word “amnesty”, having as it does a common origin with the word “amnesia” and the suggestion that we forget about what happened—we do not forget about it. We very definitely in my view should not forget what happened; we simply no longer prosecute for a particular—

Kate Hoey

Yes, but we know that words can mean different things to different people in Northern Ireland. But, following on, I do not understand why you would not have wanted to check things for yourself—“I should know whether this was devolved or not devolved.” It seems so obvious and common sense.

John Larkin

Well, I know that it is for the Committee to ask the questions and for me to attempt to answer them, but the difficulty is, why would I engage in a piece of research that does not directly sound on my current duties?

Lady Hermon

Because we have the devolution of policing and justice to David Ford. We have had that in place since the spring of 2010, when he was elected as Justice Minister. In the spring of 2014, four years later, we discovered it through the Downey judgment and Dominic Grieve’s statement on the Downey case courtesy of an urgent question asked by our Chairman in the House of Commons. There was a subsequent statement by the Secretary of State in which the blame was originally placed with, “It’s a devolved matter,” and then she had to apologise and retract that statement because it is a reserved matter. One would have thought that, as the Attorney-General for Northern Ireland, you would have thought, “Gosh, we have devolution of policing and justice, and I’m the Attorney-General for Northern Ireland. I had better check the law here.”

John Larkin

I am sometimes accused of being too much of a self-starter.

Lady Hermon

I haven’t accused you of that.

John Larkin

I am talking about people outside this Committee. I know this appears dreadfully unhelpful, but you are moving into the territory of whether I would look at that. Well, why would it have been that, hypothetically, I might look at issue x? The usual answer is because I have been asked to look at issue x.

Lady Hermon

I am not asking about anything else. I am asking whether you personally, as Attorney-General, sought to understand the legal position in case you needed to make other inquiries. I am startled that the Chief Constable tells us that, for national security reasons, he could not possibly tell the Policing Board in full about the OTR administrative comfort scheme. Representatives of the policing board have come here, and we asked them what they understand the policing board’s powers to be. Now we have the Attorney-General for Northern Ireland telling us that you will not confirm that you have checked the law on whether what the chief constable is saying is technically correct—that this is a matter of national security and therefore cannot be devolved to the policing board. More to the point, even though we have had devolution for four years, this still remains the responsibility of Westminster. Where is the statutory authority for that?

John Larkin

The statutory authority for what?

Lady Hermon

For reserving OTRs after the devolution of policing and justice and after your appointment. Where is the statutory authority for that? Give me a piece of legislation?

John Larkin

Again, with respect, you are moving into the territory of—

Lady Hermon

I am not asking you about legal advice. I am just asking you to identify to the Committee the statutory authority for OTRs being reserved.

Chair

We have established that he has not researched that. I think that is the answer.

John Larkin

Certainly initially I did not take a view on that issue. I wouldn’t go further than that.

Lady Hermon

I just want to ask what the statutory authority is for the OTR scheme continuing to be regarded as a reserved matter.

John Larkin

Again, for the reasons I have touched on, I cannot answer that question. The one thing that does immediately occur to me—

Lady Hermon

It has nothing to do with advice. What is the statutory authority?

Chair

Let’s hear the answer.

John Larkin

It seems to me, and I speak subject to correction, that the Policing Board has the power to require the Chief Constable to provide it with information. Of course there is an analogous issue looming large at present, as we all know, with the police ombudsman’s powers. It strikes me that, in the absence of a specific exception, which doesn’t immediately appear to me to exist, the Chief Constable will have to supply that information to the Policing Board.

Lady Hermon

I have to say that I am enormously disappointed with that response.

Chair

We may have to return to that, and I am sure we will.

David Simpson

I think your teaching will have to improve if Mr Larkin is a past student.

Lady Hermon

I agree entirely.

David Simpson

You may have answered this before I came in—I apologise for being late, but I had folk to see outside. Did the United Kingdom mainland Attorney-General consult you before deciding to proceed with the prosecution of Downey?

John Larkin

No.

David Simpson

Didn’t you find that unusual?

John Larkin

No, not at all, because I do not have prosecutorial responsibilities.

David Simpson

So he didn’t consult in any shape or form?

John Larkin

No.

David Simpson

That is the only question I have.

Nigel Mills

Mr Larkin, I think one of your duties is to protect the public interest in legal matters. Is that right?

John Larkin

Yes.

Nigel Mills

We heard various witnesses say that there is a clear public interest in prosecutions taking place for serious offences, so I am a little surprised that you don’t see protecting the public interest by making sure these prosecutions take place as one of your duties.

John Larkin

You would be absolutely correct if I were responsible for the superintendence and direction of the Public Prosecution Service, but I am not. My predecessors, who were also the Attorneys-General for England and Wales, had that power of superintendence and direction. The Director of Public Prosecutions, although appointed by me, is also statutorily independent in the discharge of his or her functions.

Nigel Mills

So you don’t have a responsibility to ensure the legal framework in Northern Ireland is correct to ensure prosecutions in the public interest take place?

John Larkin

It is entirely the function of the director to make decisions independently about who is and is not prosecuted. That is statute; it is nothing to do with me.

Nigel Mills

I am thinking more of the fact that we have managed to issue 228 letters that may or may not confer some kind of a right to a group of individuals, plus a selection of royal prerogatives of mercy. Isn’t there a policy issue here? Seemingly, the devolved authorities in Northern Ireland need to understand the legal status of all those things, and what should be done to get them in line with the public interest. That strikes me as being a policy issue that falls within your domain, rather than an individual prosecution case.

John Larkin

I am not sure it is. Different models of prosecutorial accountably have been explored, including confining the power of superintendence to issues of broad policy. I have no power even over the broad policy of a particular issue that the PPS might, from time to time, adopt. I have also expressed my view publicly on more than one occasion about when I should have the power of superintendence and direction, but don’t at present.

Nigel Mills

It strikes me that we have a devolved justice system and devolved policing, and you are the Attorney-General who advises the Assembly and, ultimately, the Departments.

John Larkin

Advises the Executive, not the Assembly.

Nigel Mills

If there is a public policy interest in having a system that is capable of delivering prosecutions, if there is a need to work out what has to be done in Northern Ireland to ensure prosecutions have a greater chance of success, and if it is a matter of policy and a general issue, rather than an individual case, would that not fall within your domain?

John Larkin

I agree entirely that it should, but it doesn’t.

Nigel Mills

So whose job is it, then?

John Larkin

There is a gap, and I have made that point publicly. There is an accountability gap in the present statutory arrangement.

Nigel Mills

You don’t think you could squeeze it into your duty of protecting public policy?

John Larkin

Not even those who from time to time have counted as my opponents have ever accused me of a lack of resource in the making of legal arguments. I assure you that if it could be done, I would do it, but it can’t.

Nigel Mills

I want to move swiftly on to the Croatian case that you cited earlier, which you suggested might mean that amnesties are not lawful. If someone has had a pre-conviction royal prerogative of mercy that does not let them off afterwards, but lets them off in advance, does that not look a little like an amnesty?

John Larkin

It is not an amnesty, but the discrete discharge of an aspect of the royal prerogative. A lot of issues may have to be addressed, given some of the rather sweeping statements in the Grand Chamber’s decision in Margus.

Nigel Mills

Normally, you would think of mercy as, “You have been convicted for offence X. We will give you mercy on that offence.” You wouldn’t normally think, “You may or may not have done offences A, B, C or D. We will let you off all of them.” In that situation, that would start to look like an amnesty rather than an exercise of clemency, wouldn’t it?

John Larkin

The difficulty that certainly I have—I suspect that the Committee also labours under this—is that we simply do not know enough about these exercises of the royal prerogative.

Nigel Mills

One concern I have on these letters is that, effectively, they say, “You are not wanted for any offence pre-98.” Of course, without going through every murder pre-98 and checking that each individual hasn’t any connection with that that hadn’t previously been spotted, it is very hard to know whether you are wanted for any offence. It is easy to go and check, in theory, whether you are wanted for offence X that you were accused of, but the letters go much more broadly than that, don’t they?

John Larkin

I haven’t looked at the particular text; I gather that there is a variation in the particular text employed. But it strikes me that that must be right; obviously, if the request comes in: “Are you looking for me with respect to the following offences?” the answer, at least from the perspective of those administering such a scheme, is easier to come by. But I suspect that, given the nature of this exercise, people will want more the general reassurance.

Chair

You mentioned the accountability gap. Do you suspect any intention there, to enable the OTR schemes to run?

John Larkin

No. It is purely a by-product of the statutory arrangements found in the Justice (Northern Ireland) Act 2002.[17]

Kate Hoey

Mr Larkin, just remind me, how did you first hear about the Downey judgment? Who rang you?

John Larkin

No one rang me.

Kate Hoey

You didn’t get any special notification? You only found out about it when it appeared on Sky News?

John Larkin

I am not going to give any advertising to a particular outlet. Generally through the media.

Kate Hoey

So the Attorney-General did not, as you have already answered, did not ask you before they were going to prosecute Downey?

John Larkin

No.

Kate Hoey

Did he ring you to ask you whether you thought he should appeal or anything?

John Larkin

No.

Kate Hoey

Have you discussed this matter with Dominic Grieve?

John Larkin

In very general terms. Again, that is on a Law Officer to Law Officer basis.

Kate Hoey

On the telephone?

John Larkin

In person. Last week.

Kate Hoey

So you met him last week and talked about this?

John Larkin

The purpose of our meeting was much more general. This issue was touched on.

Kate Hoey

Do you have a personal view on whether the case should have been appealed?

John Larkin

In one sense, it is easy. We have a phrase in this part of the world, “the hurdler on the ditch”. With the Margus judgment, and as one reads the careful decision by Mr Justice Sweeney, it seems to me that there is no explicit weighing of the article 2 rights of the next of kin of the deceased. This strikes me, looking at it now, with the benefit of the subsequent decision of the Grand Chamber in Margus, as perhaps something that could have been usefully explored on appeal. Of course, our system of criminal justice, as you know, does not, unlike, particularly, the French system, have a formal role for the next of kin of victims. But it does strike me that, subject to issues about time limit, this is not a reference to appeal, but the next of kin could quite possibly pray in aid the Margus decision in an application to Strasbourg.

Kate Hoey

So some of the victims of Hyde Park?

John Larkin

The next of kin of the victims.

Kate Hoey

Okay, thank you. Just looking at what it says about you, you are the chief legal adviser of the Northern Ireland Executive on both criminal and civil matters and are responsible for protecting the public interest in matters of law. Do you advise individual members of the Executive?

John Larkin

Yes. I will be asked by individual Ministers as well as groups of Minister to advise.

Kate Hoey

When it is a public interest matter?

John Larkin

Or a specific, discrete legal issue.

Kate Hoey

Okay. Has Gerry Kelly approached you to ask you for advice about appearing before the Select Committee?

John Larkin

That is a classic invocation of the Law Officers’ convention.

Kate Hoey

If Gerry Kelly had asked you, presumably, in terms of protecting the public interest, you would have advised him to come before this Committee?

John Larkin

What I can say is that it is most unlikely that Mr Kelly would have done so, because he is not currently a Minister. He was previously a junior Minister. He is not a Minister at present.

Kate Hoey

So he could not come and ask you for advice, anyway?

John Larkin

I would have been, in the circumstances, very surprised if he had, but I cannot—being faithful to the convention as best I can—really go any further with that. If the question is asked in the abstract, whether I think it a good thing for all the available material to be placed before this Committee, then of course the answer is a resounding yes.

Kate Hoey

Thank you.

Oliver Colvile

When Lord Goldsmith was under some pressure to release his information about his legal opinion on Iraq, he also played the line, “I can’t do it under convention.” There was then quite a large amount of public outcry, and presumably if there was a similar kind of public outcry, you might be found to move your position from where you are at the moment on this?

John Larkin

I assure you that the issue of public outcry would have nothing to do with any shift of position. Frankly, I think that, at the risk of treading beyond the purview of this Committee, if the nation is being taken to war, those who are going to be placed in harm’s way in the service of the nation should know the legal basis for being asked to do so. So I have to say, that would strike me as one where, exceptionally but quite clearly—in the absence of some issue touching on the nature of our relationship with allies, and setting that to one side—it is absolutely clear that the advice should be made public.

Oliver Colvile

I am not a lawyer or a constitutional expert. Could you just explain to me who your line manager is?

John Larkin

The rule of law.

Oliver Colvile

Who do you report to?

John Larkin

I am statutorily independent. There are mechanisms for accountability through the Assembly. I appear regularly before the Justice Committee and provision exists for questions to be asked of the Attorney, but the necessary Standing Orders for Assembly participation by the Attorney have not yet been made.

Oliver Colvile

My final point—I understand that before you took up this job, you were a constitutional lawyer. You cannot tell us whether this is a reserved matter. You also cannot tell us whether or not you have taken advice. Could you point us in the direction of someone who could actually tell us?

John Larkin

The Committee has, through the House of Commons staff, access to very high calibre legal advice.

Oliver Colvile

So your advice is that we should go and talk to the Library to find that information?

Lady Hermon

That is probably true.

Oliver Colvile

Can I ask that we do that?

Chair

We obviously have in our employment two eminent QCs for this inquiry, and we have discussed that with them, but I think the questions are really about your own position and understanding. You have set out why you cannot answer the questions.

John Larkin

Nothing would give me greater pleasure than to discuss some of the constitutional law issues at length with the Committee but there are reasons which I cannot go in to, which stand under the Law Officers’ convention and which, historically—perhaps when we are all dead—will become more widely known.

Lady Hermon

I hope we do not have to wait that long.

Dr McDonnell

I would like to probe a little bit, and you have probably touched around the edge of this but in terms of the position since devolution, since you were appointed and the Minister of Justice was appointed—have you been asked for any advice or given any advice to the Executive around these issues?

John Larkin

That is a clearer example of the territory touched on by Lady Hermon. The convention is that I cannot answer that question.

Dr McDonnell

Right. Okay, well, you cannot answer that question, but do you have an opinion that you might offer to us—or suggest to us—around the issue of whether or not devolution of policing and justice should have devolved the responsibilities for some aspects of on-the-runs?

John Larkin

I have to commend Dr McDonnell for attempting again what Lady Hermon has previously attempted, but I must equally decline.

Lady Hermon

You will be relieved to know I am not going to go back over that topic. But I am going to go back to something that is a little bit startling and I think you need to give some evidence about that in more detail. I took down exactly what you said. The point that you did not think had been highlighted sufficiently but troubles you more about the scheme than, perhaps, some other aspects, which of course you could not possible reveal—which bits really troubled you—was those OTRs on whose behalf an application had been made and who were told that they were not wanted, and those who told that they would be wanted, who you felt had been tipped off that, in fact, they were wanted. Could you elaborate on that? Your concern was—you actually said the bit that troubled you most that had not received the attention was those people who were indicated, where their name had been fed through by Mr McGrory or another means—by Sinn Fein simply handing over the list to the PSNI—and they did not get a letter at the end of the day.

John Larkin

There are told, essentially, in terms, either in correspondence or not, or by drawing the inference from the non-issue of correspondence, “Stay where you are”.

Lady Hermon

Yes. Why is that troubling you so much? It is a criminal offence.

John Larkin

It seems to give rise to the possibility of tipping off to the offence, under section 4(1) of the Criminal Law Act (Northern Ireland) 1967,[18] or attempting to pervert the course of justice, which is the residual common law offence that section 4(1) has left in place.

Lady Hermon

Who will be guilty of that offence, then? What further detail would you need?

John Larkin

It involves, obviously, a very detailed factual inquiry and I do not directly know the facts. However, if one takes it away from the context of the scheme, if I know that the police—to give an example—are looking for Lady Hermon, and I tell her not to return home for a period of months because the police are looking for her, then, subject to me knowing or believing that she has committed an offence, I have either fallen into section 4(1) or, if I am not so sure whether or not she has committed an offence but I am aware the police are looking for her, then I may have committed the common law offence.

Lady Hermon

So if the letters were signed off initially by Jonathan Powell in No. 10, as we now know from the Downey judgment, and then subsequently by various individuals in the Northern Ireland Office, and then handed, we believe, to Gerry Kelly, is the contention that Gerry Kelly, having fed the names in at the beginning and knowing which ones are getting the letter and which ones have not got a letter communicates that to them, then is there potential there that a number of people have committed—

John Larkin

I am making no contention, of course, against individuals or groups. I am simply saying that it strikes me that the aspect of the scheme that has been relatively underexplored has been the indication, by whatever means, to individuals that the police are still looking for them.

Lady Hermon

Following on from that, since the PSNI has commenced Operation Redfield, in light of your evidence today, would you expect the PSNI to be looking at the possibility that those who tipped off on-the-runs that they were not safe to come back into the jurisdiction, and communicated that information to them, may be in breach of the criminal law? Should the PSNI be looking at that as well?

John Larkin

Of course, the function of the Committee is to find facts that are not in the public domain. One would have expected—one would have hoped—that care was taken and that regard would have been had to section 4 and the common law offence of attempting to pervert the course of justice before any indication or material was put in play that could have given rise to those issues. If it wasn’t—if there was carelessness or worse—one would, indeed, expect that to be properly looked at.

Dr McDonnell

Extracting that point further—I hope that this time I am not treading on thin ice—there is the suggestion that part of the failure in the Downey case was that Downey’s inappropriate letter should have been rescinded in 2008 and 2009. What has intrigued me from the beginning is that, by rescinding the letter, it would effectively be similar to tipping somebody off. Have you any opinion on that?

John Larkin

I have to confess that hadn’t occurred to me.

Dr McDonnell

It is logical.

John Larkin

It is a very good point but I suppose that there, the lawful excuse for the purposes of section 4, would lie in the fact that one was removing—as we now know—any potential obstacle to prosecution so there would be a clear, lawful excuse for taking that course.

Dr McDonnell

What intrigued me—I am still not quite clear—was where, in that case, responsibility would have lain, in terms of going back to reverse the letter, because it was so muddled. The chain of command—

John Larkin

Steering away, as I must, from the issues that both of you have earlier sought to explore with me, let me say that it is very clear that, at least before devolution of policing justice, there is a relatively unified authority. It strikes me that the person who writes the letter is the person best placed to rescind.

Dr McDonnell

In rescinding, there is the potential for compounding the offence.

John Larkin

No, because the rescinding would be done to ensure that the prosecuting authorities were free should the opportunity rise to prosecute. Therefore, the lawful excuse concentrated by section 4 would be in play.

Lady Hermon

The Northern Ireland Office should simply rescind these letters.

John Larkin

Or should have.