A top British spy within the IRA allegedly linked to 50 killings is unlikely to ever face prosecution, the High Court has heard.
Counsel for the father of one murder victim claimed Freddie Scappaticci, the west Belfast man named as being the military agent codenamed Stakeknife, will not be brought out of a witness protection programme.
Ashley Underwood QC made the prediction during a legal bid to secure a fresh inquest into the death of Joseph Mulhern in 1993.
Mr Mulhern, 23, was abducted, interrogated and shot by the IRA, who accused him of being a police informer.
His body was dumped on a remote hillside near Castlederg, Co Tyrone.
The murdered man’s father, Frank Mulhern, is seeking to judicially review a decision to refer the case to the Director of Public Prosecutions.
He wants a judge to rule that the Attorney General must instead direct a new inquest be held.
Mr Mulhern’s lawyers contend there is an obligation to investigate under Article 2 of the European Covention on Human Rights.
With no-one ever convicted of the killing, they claim the police are aware of evidence that Joseph Mulhern was killed “by or at the instigation of a British agent, Freddie Scappaticci”.
Scappaticci left Northern Ireland in 2003 when he was named in the media as being Stakeknife.
Before quitting his home he vehemently denied being the agent who allegedly headed up the IRA’s internal security unit, known as the ‘nutting squad’.
In October last year Director of Public Prosecutions Barra McGrory QC called for police to examine Stakeknife’s activities, along with what was known by RUC Special Branch and MI5.
Chief Constable George Hamilton has since decided detectives from an external force should handle an inquiry which could last five years and cost up to £35 million.
But in court on Wednesday Mr Underwood claimed there is no realistic prospect of a prosecution.
He said: “Scappaticci vanished from his home in Belfast in 2003.
“He’s believed to have joined a witness protection programme and be living under a assumed name.
“That does not give one to believe anybody is going to bring him before a court.”
He also cited police resource issues as a potential further stumbling block into fully investigating Stakeknife’s alleged role in 50 murders.
But Mr Justice Maguire described his assessment as “pessimistic” and stressed how those wanted can be brought back into the jurisdiction.
At one point in the hearing he commented: “If I were him (Stakeknife) I’m not sure I would be completely happy in bed at night, would it ever flicker in my mind that people might be coming for me at some point.”
David Scoffield QC, for the Attorney General, argued that the legal challenge was premature.
“The Attorney has not made a decision to refuse to direct an inquest, at some stage in the future he may do so,” the barrister said.
Mr Scoffield also insisted there seems to be enough evidence to merit a criminal investigation.
“It’s known and has been in the public domain for some time that there’s a strong case at the very least that Mr Scappaticci was working for agencies of the state,” he told the court.
Pointing to the new police inquiry, he added: “It’s clear that it will be a searching inquiry into Mr Scappaticci’s potential involvement in criminal activity, and how that relates to be alleged work for the state.
“That undermines the suggestion that there’s any irrationality in awaiting the outcome or progress in that investigation before considering the issue of an inquest further.”
The hearing continues.