There is a “high” chance that if the police manage to bring charges against someone for an IRA crime that they will use the same defence which saw John Downey walk free, an experienced lawyer has warned.
Two and a half years ago, Downey – who police suspected of carrying out the 1982 Hyde Park Bombing – walked free at the Old Bailey after an ‘abuse of process’ application by his defence team led to the case against him being thrown out.
The case had seismic legal and political implications as it revealed the existence of scores of ‘letters of comfort’ which the Blair Government had secretly sent to ‘On The Run’ (OTR) IRA members who remained wanted by police.
The case led to the then first minister, Peter Robinson, threatening to resign and a series of inquiries into how the situation had developed to the point where such a high-profile trial had collapsed so spectacularly.
Now a constitutional lawyer, Austen Morgan, has written a 240-page book about the story behind both the letters and the Downey case.
The Ulster-born barrister, who now lives in London, described the book as “the first serious study of the OTR controversy” and said that his book vindicated the policemen.
In the book, Dr Morgan says: “The chances of another abuse of process application, from a republican defendant, in an English, or, more likely, Northern Ireland, court, is high.
“The [House of Commons] Northern Ireland Affairs Committee (NIAC) may, therefore, return to the issue. The current political outcome, the NIO’s disavowing of the letters of September 9 2014, may therefore not be the last word on the sorry saga.” In the book, Dr Morgan argues that Tony Blair acted unlawfully in making promises to Sinn Fein which could not legally be fulfilled as Parliament had rejected attempts to introduce a statutory amnesty.
Mr Blair had privately told Sinn Fein president Gerry Adams that the Government was “now working with a renewed focus on putting in place mechanisms to resolve all other OTR [on the run] cases” and telling him: “I have always believed that the position of these OTRs is an anomaly which needs to be addressed. Before I leave office I am committed to finding a scheme which will resolve all the remaining cases.”
The official explanation at the time of the Downey case collapsing was that there had been a mistake in issuing his letter as it wrongly said that he was not wanted by any UK police force – when in fact he was wanted by the Metropolitan Police.
Two senior PSNI officers were blamed for that – Peter Sheridan and Norman Baxter. But Dr Morgan said that his book – based on trawling through a mountain of information which was released during inquiries into the affair – had vindicated them.
Instead, he said that in his view the blame for the mistake should ultimately be placed at the door of the NIO, which had overall responsibility for the scheme.