DPP: We are not using legacy directions against the security forces capriciously

The News Letter recently scrutinised legacy orders in which prosecutors have required the PSNI to examine past allegations against police and Army.

These so-called Section 35.5 directions are taking a heavy toll on police resources, and fuel unionist fears of an imbalance into how the past is being investigated.

Our scrutiny of Section 35.5 (see link to our January report at the bottom of this article) followed Public Prosection Service figures that only six of their 18 Section 35.5 orders focus on the state, and this was treated in some reports as if it disproved bias.

We, however, thought the nine directions that are not legacy cases should be excluded, because they are irrelevant to the matter of balance with regard to the past.

That leaves nine legacy directions, three of them on ‘Stakeknife’. Mr McGrory’s early comments on that probe suggested that those three are also focused on alleged state wrongdoing (see below). If so, all legacy 35.5s are about state.

Given that 10% of Troubles killings were by the state (mostly legitimate, defenders of the security forces believe), this is a massive imbalance.

Mr McGrory says the reason for citing the 18 cases was to show it is a power “we use routinely when necessary and it’s not always in legacy cases”.

He cites a sex abuse case which had to be withdrawn after a change in evidence “in circumstances which caused us great anguish” and required investigation.

Mr McGrory adds: “It’s not that we’re using Section 35.5 capriciously in legacy cases, it is a tool the prosecutor has when something arises.”

He says: “Thousands of incidents will have happened during the Troubles which were obviously crimes against humanity, crimes against individuals, and the director doesn’t initiate investigations because the director is entitled to assume that the civil police force, whose statutory responsibility it is to initiate those investigations, has done so.

“But in situations where material is in front of the director which would suggest that a crime has been committed which isn’t being investigated, he can ask the police officer to do so.”

Two broad groups of legacy case have given rise to exercise of the power, he says.

“One is the Criminal Cases Review Commission (CCRC) sending cases to the Court of Appeal and serious concerns being raised by the appeal court with us concerning the conduct of those investigations and prosecutions. So, that’s an example of the prosecutor’s office being confronted with material.”

That covers Stakeknife and Stalker-Samson cases.

“The other group of Section 35 requests – and I accept that they are virtually all directed towards potential state misconduct by their nature – concerns killings by soldiers.”

Most cases came to prosecutors from the Attorney General John Larkin following requests for inquests, Mr McGrory says.

The refocus on such shootings came after criticism of the Historical Enquiry Teams (HET) approach to them by Her Majesty’s Inspectorate of Constabulary, “which resulted in [the then chief constable] Matt Baggott abolishing HET and eventually setting up the legacy unit”.

It put attention on “a significant number of killings by soldiers between 1969 and 1973” which were never investigated by the RUC.

A further Section 35.5 order resulted from a 2013 BBC Panorama (‘Britain’s Secret Terror Force’) that claimed Military Reaction Force members operated illegally.

“It’s not that we went looking for that case, it was brought to our attention by the national broadcaster and we couldn’t ignore the information in the programme.”

So if the BBC had examined one of the many unsolved IRA civilian massacres, that could have led to a 35.5 order?

“Of course. Take for example Omagh. There were several documentaries on the Omagh atrocity and there was a civil case then we, along with the police re-examined the evidence on Omagh and I spent a great deal of time looking at that case and decided to prosecute Seamus Daly, arising from a refocused examination of the material with the police, which would have been influenced by the television programme.”

Asked if he has power to use Section 35.5 to order police to investigate as he chooses, A or B, or X or Y, Mr McGrory says: “No.”

He adds: “I very much appreciate why there might be a perception that there is some targeting of the state as a consequence of these investigations but I think there needs to be a responsibility on those who report on these matters to put them in context.”

He says that in other (non 35.5) cases prosecutors have, for example, sought return of Boston tapes material “and again they are across the board, one loyalist and I think two republican”.

• Tomorrow: DPP on the Pastor McConnell trial

• The murderers have most to fear from Stakeknife probe

When talking about investigation surrounding the informer ‘Stakeknife’ (the Belfast man Freddie Scappaticci denies that he is Stakeknife), led by detective Jon Boutcher, Mr McGrory has referred to an “appalling vista” of a parallel process in the security forces that meant murders were not properly investigated.

That gives an impression that his focus is on state forces who tried to penetrate the IRA, not the IRA murderers.

“No, my focus on Stakeknife is the possibility that many victims did not get justice, that those who may have been guilty of carrying out murders were permitted to escape responsibility for their actions ... so it is those who carried out the murders who have most to fear from the Stakeknife investigation.

“There is evidence which would suggest that there may have been a situation where high-level state informants were being protected and as a result of that the investigations into those murders were compromised.”

He adds: “The real focus of the investigation is solving a large number of murders which remain unsolved.”

Is there a problem looking retrospectively at a state which was thrown into a chaotic situation in the Troubles and facing extremely difficult decisions with agents?

“But it has to have done so within the law. The rule of law is indivisible between the state and its citizens. It must be followed by each and the state obviously has additional responsibility in administering the law, to do so within its own rules.”

The Stakeknife investigation was commenced by his predecessor Sir Alasdair Fraser after cases referred to the appeal court revealed information that had not been given to police investigators.

• Tomorrow: The DPP on the Pastor McConnell trial

• News Letter report January: State cases form vast bulk of PPS legacy referrals