Downey and Villiers: is there an IRA amnesty?

No amnesty for the IRA 187! That was the (apparently) tough message from Northern Ireland Secretary Theresa Villiers in response to the revelation that many potential suspects of crimes during the Troubles had received “letters of comfort” suggesting they would not be prosecuted.

These have been called “get out of jail” cards by critics of the scheme, initiated under the Labour Government in the context of Northern Ireland peace negotiations. Angry Loyalists, Conservatives and others believe it amounts to an unconstitutional amnesty, never agreed by the UK Parliament. They are particularly outraged that in the case of John Downey one of the letters, sent to him by the Northern Irish police in error, caused the collapse of the Hyde Park bombing trial. His lawyers had successfully claimed abuse of process before Mr Justice Sweeney in the High Court.

So no wonder Villiers had to talk tough. But is she actually saying anything tough? Actually, no. Her speech in effect signs up to the scheme and suggests the Tories in the Government may huff and puff but will quietly leave it alone. Her statement says nothing new and changes nothing. Her main contention is this:

They [the letters] will not protect you from arrest or from prosecution and if the police can gather sufficient evidence, you will be subject to all the due processes of law, just like anybody else.”

That’s not new, tough anti-IRA bomber policy – that’s just a description of the status of the letters. They were sent to “on the runs” (OTRs) – potential suspects of often serious terrorist crimes who had moved outside UK jurisdiction. Under the Northern Ireland peace deal those convicted offenders already in prison would be due for early release – they would serve no more than two more years for their offences. But it was difficult to know how such a principle would affect those who had evaded justice – and weren’t likely to want to rush home and put themselves on trial even if two years was the maximum likely sentence.

Background
The letters are couched in terms suggesting that there wasn’t, at the time of sending, sufficient evidence that the OTRs were involved in crimes or else, even if there was suspicion, there was not sufficient evidence to gain a prosecution. They said:

On the basis of information currently available, there is no outstanding direction for prosecution in Northern Ireland, there are no warrants in existence, nor are you wanted in Northern Ireland for arrest, questioning or charge by the police. The RUC are not aware of any interest in you from any other police force in the United Kingdom. If any other outstanding offence or offences came to light, or if any request for extradition were to be received, these would have to be dealt with in the usual way.” (Sweeney judgment para 49)

Downey did not fall into this category. He denies involvement in the bombing, but the authorities were interested in him. The letter of comfort he received had been sent in error. That he was able to rely on an erroneous letter was because of legal principles founded in equity rather than law – he had relied on the letter and reentered UK jurisdiction on the basis of its information. It would be, in equitable terms, unconscionable to pounce on him and prosecute him in such circumstances.

How to deal with the OTRs
The advice from the Attorney-General Gareth Wyn Williams, (Lord Mostyn) in January 2001 makes it clear the Government was aware of the constitutional problems about offering any sort of comfort to OTRs as part of a peace deal package. He “expressed concern about the making of any statement that implied that Government, rather than Parliament, would seek to influence or even prevent the prosecution of individuals – pointing out that not only would that be constitutionally wrong, but that it would not be possible either – given that neither he nor DPP(NI) [Northern Ireland Director of Prosecutions] could be influenced by any such statement of government intent.” (Judgment para 46).

Parliament would be able to offer amnesties – Parliament can do pretty much anything and the police and prosecutors would be bound to follow it – as long as it was in legislation. A statement from a Government is not legislation – and a semi-secret policy is by definition even less authoritative. Police and prosecutors don’t take direct orders from Governments. They pursue criminals and prosecute them according to their own assessments of the need to do so – but, crucially, also according to “the public interest”.

So does “public interest” include underwriting a political deal that brings peace to Northern Ireland (potentially) and could save lives in future? Could prosecutors, using their own discretion, decide the benefits of the political deal overrode the interests of justice in bringing brutal murderers to book?

Lord Goldsmith became Attorney-General later in 2001 and he made clear that the public interest could only be served by bringing prosecutions where there was sufficient evidence of involvement in serious crimes. Furthermore any blanket amnesty would be improper and not in the gift of the Government. Only Parliament could issue such an amnesty by passing legislation. One should add that ministers might arguably make use of the Royal Prerogative of mercy – which would not be uncontroversial and might be seen as a dangerously “political” use of the Monarch’s residual powers (it was used in a small number of cases). So, no, the public interest did not include supporting the agreement that brought to an end (one hopes) centuries of conflict – and nor have the letters been issued in that spirit, as we shall see.

Goldsmith’s view was that courts would in fact not entertain an abuse of process argument of the sort run by Downey’s lawyers. He was presumably taking the view that courts would uphold separation of powers and accept that the prosecuting authorities could not be bound by political decisions of the Government and hence not by any administrative scheme to send out letters of comfort. (Judgment, para 54) (He did not, of course, know of the peculiar facts that would eventually face the court in the Downey case.)

Importantly, despite loose talk in the press and from those opposed to the letters, there is not an amnesty. The Government wanted something that was in effect an amnesty but Goldsmith made clear that was not possible. In June 2002 he told the Secretary of State for Northern Ireland, John Reid, that the “administrative process” of issuing letters of comfort “would not provide the means by which the Government’s commitment in relation to OTRs would be met”. (Judgment para 65)

So the letters are something of a fudge. They are not officially from the Government and so have no government imprimatur or authority. They are from the police and give an assessment at the time of their writing of whether there are cases outstanding against the individuals. They:

followed a standard pattern and referred to the position of each individual as it was known at the time that the letter was written; that whilst the checks had been thorough they did not amount to an amnesty, and that if other offences were discovered, or new evidence was found that linked individuals with offences, or fresh offences were committed, then the individual concerned would face arrest or questioning in the usual way”. (Judgment para 47)

The Villiers view
So Villiers is wholly orthodox in her view of the letters. If the recipients have been free from investigation hitherto, they might not be henceforth – but they are at risk only if, on an individual basis, new information is turned up that puts them – individually – in the frame. There is no general amnesty, and any “amnesty” for individuals is contingent.

Crucially under the scheme there had to be a process of checking each name handed over by Sinn Féin, the people they wanted exemptions for. The words of the letter had to be literally true after a trawl of the databases and a check with any law enforcement authorities that might have an interest in each individual name. So “The DPP(NI) understandably felt that it was important that, before anyone was given the green light to return to Northern Ireland, he was personally satisfied that all avenues of enquiry had been exhausted, and a negative return filed.”

In a statement former Labour Northern Ireland Secretary Peter Hain noted the rigour of the investigations before any of the letters were issued. They were supposed to be based on fact as evinced by the databases of police forces, not just a sort of “as far as we know you’re not wanted”. He said: “These were important assurances to be processed responsibly and carefully, issued in the name of the Government, intended by the Government to be reliable and anticipated as being relied upon.” (Judgment para 139)

Villiers, however, has obfuscated all this subtlety to emphasise the down-side (as far as the recipients are concerned) – that they might still be on the hook for offences. She’s knocking down an Aunt Sally: the idea in people’s mind that the letters are “get out of jail” cards. In fact they never were, so she is quite able to say that they are not now.

If it sounds as if she has done something, made a decision and given an order that the letters be ignored from now on – that might be an impression she wants to encourage. In reality she has not made a decision nor given an order and she cannot do those things. Who would she give the order to? As noted above, the police and prosecutors are independent. They are not now obliged, on Villiers’ say-so, to go and round up all those who have the letters and bring them before a court. “The OTR decisions [are] based on purely policing considerations” (Judgment para 76) so Villiers cannot intervene and tell the police to come to different conclusions regarding those they have sent letters to or might send such letters in the future.

The letters are assessments about whether potential suspects are wanted for crimes on the basis of evidence against them and the likelihood of successful prosecution. They are due these, at any rate, under Article 6 of the European Convention on Human Rights: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” (Note: the initial transcript of the judgment is in error in citing “Article 3” on this.) Villiers cannot therefore stop the letters going out if there is a request for them, for example from Sinn Féin on behalf of individuals or by the individuals themselves.

Villiers’s comments sound tough but in reality she is not saying, and cannot say, more than this: that whether someone with a letter of comfort is arrested for a crime related to the Troubles will depend on the evidence, chances of that evidence securing conviction and (though she may not like this) their human rights.
Twitter: alrich0660 

Stop Press: Lady Justice Hallett has now (17 July 2014) reported on the OTRs and concluded that they do not constitute amnesties and that they are lawful albeit there were “significant systemic failures” in their operation – including the Downey case. Here report is here and includes a useful appendix on the “Shawcross doctrine” regarding when an Attorney-General might exercise “quasi-judicial” discretion by not bringing a prosecution. It goes beyond mere unlikelihood of success to include “a question of public policy or national, or sometimes international, concern”. This may have been the issue in the BAE-Saudi arms case where prosecution was halted on grounds of damage to relations with the Saudis and a knock-on effect on the fight against terrorism. Hartley Shawcross went further still, saying a case might be dropped depending on “the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations affecting public policy”.

This is very wide indeed. Say, for example, there were allegations of a conspiracy in political circles to commit crimes so terrible that it might undermine people’s very faith in the political system to have them brought to light, might that be reason enough to not proceed with prosecution? Paradoxically, of course, an Attorney-General would not publicly be able to explain the reasoning behind such a decision – for that in itself might undermine public morale and belief in the system. The AG might fall back on considerations such as whether it is in the public interest to prosecute historical cases or:  “Is the evidence sufficient to justify a man being placed on his trial?”  

The Crown Prosecution Service, in telling six former News of the World journalists that they did not face prosecution over hacking because “there is insufficient evidence for a realistic prospect of conviction” added that: “A determination that there was sufficient evidence does not mean that the CPS has made any finding concerning guilt or criminal conduct; it is the test set out in the code for crown prosecutors and one that is applied in all decisions on whether or not to prosecute”.

Note: The Sweeney judgment is here: R v John Anthony Downey (pdf)

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