Questions over PPS ‘reluctance’ to charge in Police Ombudsman investigator cases

Public prosecutors have rejected suggestions of an “undue reluctance” to charge Police Ombudsman (PONI) staff with any offence - even in cases where it’s claimed lives could be “placed in grave risk” as a result of unlawful information disclosure.

Thursday, 29th April 2021, 6:50 am
The offices of the Police Ombudsman in Belfast

In a decision announced this week, the Public Prosecution Service (PPS) said no charges would be brought in relation to three people, including a PONI investigator, who were reported in relation to potential breaches of the Official Secrets Act.

It has also been revealed by police that no further investigation is being carried out to establish who stole or leaked the secret intelligence material used in the film No Stone Unturned.

The latest unlawful disclosure case involves highly sensitive material that found its way into the possession of KRW Law.

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The security breach came to light during court proceedings involving the mother of murder victim Eoin Morley. Eilish Morley is involved in an ongoing civil action against the MOD, Peter Keeley and the chief constable of the PSNI. Keeley has been widely reported to be a former British army agent inside the IRA using the pseudonym Kevin Fulton.

In a court affidavit, a former legal director at PONI confirmed the documents identified individuals “involved in anti-terrorist activities whose lives could be placed at grave risk” if they fell into the wrong hands.

At the time, KRW assured the court that the law firm “did nothing to procure or otherwise aid and abet the original disclosure of the documents,” and has given a number of undertakings in respect of measures to reduce the security risk to any individual.

When the security breach became apparent in April 2017, a former PONI investigator was arrested at his home in Kent. Two other people were also reported to the PPS in relation to the alleged data breaches, however, the PPS has now said: “Following a thorough consideration of all available evidence by a senior public prosecutor, a decision not to prosecute two individuals reported for alleged misconduct in a public office issued in February 2021 as it was concluded that there was insufficient evidence to provide a reasonable prospect of conviction for any offence.”

The third person has recently passed away.

TUV leader Jim Allister said the ‘no prosecution’ decision “will do nothing to build confidence in either the Ombudsman or the PPS”.

Mr Allister said the latest PPS decision raises fundamental questions for the Ombudsman’s office.

He said: “The attempt to prosecute two former RUC detectives which was halted and an investigation ordered into the PONI investigation should have resulted in major questions about the functioning of the office.

“This resulted in the arrest of two members of PONI staff only for the PPS to decide not to pursue the case. Is the PPS unduly reluctant to pursue cases involving the Ombudsman?”

Mr Allister added: “Recent years have seen a litany of issues arising in the Ombudsman’s Office around the way in which documents are treated and a reluctance to get to the bottom of what actually happened even when the Office was investigated by outside agencies. We still, for example, don’t know how documents relating to the Loughinisland case made their way into the hands of documentary film makers.

“How can serving and former police officers have confidence in an office with such a record?”

In response to Mr Allister’s comments, a PPS spokesperson said: “Our decision making in all cases is undertaken completely independently, impartially and strictly in line with the Code for Prosecutors. The background of the suspect plays no part in decisions, which are taken without fear or favour.

“In line with our statutory duties, the PPS can only bring before the court those cases which have a reasonable prospect of conviction. Each file we receive is considered by a prosecutor according to the individual facts and circumstances of the case. This involves the application of the Test for Prosecution, which has two stages. The evidential test must be met before the public interest test is considered.

A PONI spokesperson said: “The theft of this information appears to have occurred around 15 years ago. We asked police to commence a criminal investigation and informed the Information Commissioner. The matter was investigated by an English police service and resulted in a file being sent to the PPS for their consideration. Decisions arising from that consideration are a matter for the PPS.”

• Efforts to establish how secret Police Ombudsman intelligence came to be in the hands of the makers of the film No Stone Unturned have been wound up, police have said.

A PSNI spokesperson said: “The investigation currently has no active lines of enquiry and, other than resolving the current legal issues, there are no staff actively involved in the investigation.”

In August 2018 Durham police investigators, acting on behalf of the PSNI, affested film-makers Trevor Birney and Barry McCaffrey in a effort to establish the source of the unlawful disclosure.

The two men had their homes searched and a number of items were seized for examination, however they were both later awarded substantial compensation payments due to “inappropriate” search warrants.

The film was based on events surrounding the murderous UVF attack at The Heights bar in Loughinisland in 1994 that claimed the lives of six Catholic men.

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