Jeffrey Dudgeon: The Kenova probe was untypical, dealing with families of informants

As can be seen from the debacle around the NI Law Society abandoning its recent legacy conference, legacy practitioners and victims groups are divided – some were willing to discuss the act while others were going to picket the meeting because Sir Declan Morgan was a speaker.

I indicated in my News Letter article (After years of imbalance in legacy probes, new law passes, September 13) that how the new Independent Commission for Reconciliation and Information Recovery (ICRIR) operates from its commencement in May 2024 is crucial. The act gives ICRIR wide powers and, as its chief Sir Declan hints, is something of a blank canvas.

His website explains its objectives: “The primary roles of the ICRIR will be to provide information to families, victims and survivors of Troubles-related deaths and serious injury, and in doing so to fulfil its principal objective of promoting reconciliation.”

Memorialisation is another key aspect. Usefully, the bill was amended to ensure it had to be anti-sectarian. ICRIR’s complex draft governance arrangements have now been published on its website and comment is being sought.

In coming months, there will be a plethora of regulations published on how it will proceed in relation to the historic re-investigation roles it inherits from the PSNI’s Legacy Investigation Branch (formerly HET), the Police Ombudsman (under PONI chief Marie Anderson), Operation Kenova (under Jon Boutcher), and coronial inquests.

This article will deal with Kenova and its four commissions, all derived from judicial rulings.

Two of the four were minor and are almost concluded. Operation Mizzenmast concerned the shooting of Jean Campbell Smyth in Belfast in 1972 by either the army or the IRA. According to Jon Boutcher, it will not result in a prosecution. The other, Operation Turma, a criminal investigation into the murder of three RUC officers by the IRA at Kinnego, Lurgan in 1982 might lead to a prosecution as new DNA evidence points to a suspect.

The third, Operation Denton, into murders centred around Glenanne in Co Armagh is unlikely to be finished by next May, especially as its scope has grown exponentially. It now covers some 200 killings, many of a cross-border nature.

The fourth, Kenova itself, hinged to the late Freddie Scappaticci’s ‘Nutting Squad’ activities, generated 12,000 statements and a million pages of evidence. They were sent in 30 potential prosecution files to the PPS three years ago. Unsurprisingly, only four decisions so far have been made, all rejecting prosecutions. They included Scappaticci himself for perjury and a top PPS official for malfeasance in public office regarding an earlier decision not to prosecute the double agent.

The chances of any of the 28 pending cases against MI5, army, police and IRA personnel getting a conviction in court, if even prosecuted, are generally recognised as slim. They are said to involve the security services who ran agents without legislative protection, and those who murdered them.

Jon Boutcher is also poised to complete what he calls an ‘interim report of a high level nature’ into Scappaticci before any of the prosecutions are decided upon, let alone concluded. Such a report is most unusual when they could yet occur. That explains why it is currently with the PPS, who it is assumed, has opposed publication for fear of prejudicing any pending cases. If the PPS does permit publication it still has to go to the PSNI chief constable for a final decision. This could be delayed into the New Year given that post is vacant.

The Malone House Group and other legal experts opposed early publication of the ‘interim report’ which may explain the extra steps taken before it goes to the chief constable, and the long delay. We argued that there was a risk of breaching ECHR articles on the right to a fair trial and to protection of one’s reputation. The fear also was that the context of the times and the fact that running agents was then the only effective way of combatting terrorism, would not be fully taken account of.

Any examination of overarching themes and issues will inevitably lead to the identification of individuals in key operational roles in the security services and in government. The report also confuses two roles which must be kept distinct. Separation of powers between investigator and judge is a long-established and vital principle of our judicial system and should be protected.

Jon Boutcher became very politically involved during the passage of the Legacy Bill in the Lords when Baroness O’Loan, Peter Hain and the Labour Party tabled amendments to make the Kenova model the template for ICRIR, and for Op. Denton to continue after May. With the support of two former Metropolitan Police chiefs, one amendment was successful, although later overturned by the Commons.

The problem is that the Kenova investigation was untypical, being based on an unrepresentative subset of murders. Those it deals with are the families of informants, and those who allege state collusion. Neither group can ever be satisfied although full criminal investigations, not reviews, were undertaken. Even Jon Boutcher accepts the likelihood of any more criminal prosecutions, let alone convictions, is vanishingly small. Its purpose has become historical assessment – applied with hindsight. The state retained documents for inspection, never the paramilitaries, so imbalance is inevitable.

Kenova employed eighty staff, mostly retired English detectives, and will have cost nearly £50 million by the time it shuts down. That is 20% of ICRIR’s five-year budget. It would have been an unsustainable model on cost grounds alone while Mr Boutcher has admitted such re-investigations at the behest of families would rarely happen in England.

It is likely Kenova’s reporting will continue past May 2024 while ICRIR’s main challenge will be how to absorb and conclude the Glenanne re-investigation. Its structural arrangements on reviews (and indeed inquests) will be key to how that may be addressed, and to its success. The role of Peter Sheridan as Investigations Commissioner will be critical.

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Jeffrey Dudgeon is convenor of the Malone House Group, which is concerned about lawfare against the UK state. This is the latest in a series of essays by the group