Wisely, the usual knee jerk reactions from politicians and commentators committed to one side or another in historical cases have been held back after the sudden announcement from Jon Boutcher the chief constable of Bedfordshire running Operation Kenova that he has gathered evidence to prosecution standard. It remains to be assessed by the Northern Ireland director of public prosecutions.
The prospect of state servants being charged over the record of Stakeknife cuts through the deadlocked debate on dealing with the past.
Boutcher has prepared his ground carefully, mindful of past obstacles such as the fitting up of John Stalker, the military -inspired arson attack on John Stevens’ records store and the failure to exploit fully the Stevens reports so far.
If anybody tries to suppress evidence, if anyone tries to stop us doing what we legally should be doing, I will deal with it, I will use the rule of law to deal with that.
“When we recently convicted somebody because of things that we found on that person’s computer, again here there was a negativity about that prosecution and conviction, is that all that Kenova are doing.
“The way I would view any such conviction is a demonstration that nobody is above the law, no-one has got immunity.
“That is how we deal with people, it does not matter who they are.”
That “ somebody “ was of course Freddie Scappaticci, in a trial which as Alison Morris points out, confirms Boutcher’s belief – and the view of several documentaries, long articles and even a book – that Scappaticci is indeed Stakeknife.
When Freddie Scappaticci was first named as being Stakeknife in 2003, an allegation he has denied, senior Sinn Féin figures rallied around, press conferences and interviews were arranged and denials issued.
The smokescreen was enough to create doubt and buy time to disappear and start a new life in England under the protection of the security agencies.
Compare that to Denis Donaldson, who two years later, in December 2005, was revealed as an informer in a very public way by Sinn Féin president Gerry Adams.
Donaldson was exiled and later murdered. Scappaticci remains very much alive – raising the question, why were republicans so determined to cover up and protect Stakeknife?
At that crucial time in the peace process was admitting infiltration of the organisation at such a high level just too embarrassing?
Or did Scappaticci threaten to open his own can of worms, reveal the dark secrets about the awful acts he had committed against his own community with the approval and assistance of senior republicans?
While it seems IRA omerta has cracked in this case, it doesn’t necessarily mean the floodgates will open. They may have taken a strategic decision, now that the ” war” is over, to suffer the embarrassment over the extent of infiltration in order to try to nail state servants for what amounts to multiple cases of conspiracy to murder, implicating “ those who pulled the stirrings.”
If Boutcher’s dossier leads to prosecutions, that fond republican theory will be put to the sternest of tests. If not, the reasons will come under the closest scrutiny, unencumbered by the excuse of a major security threat. Where it leads and how it affects other cases including the Finucane murder remains to be seen.
Depending on the degree of army activity involved, Butcher presents a challenge to Conservatives and senior military figures calling for an amnesty without the condition of requiring further disclosure. Their argument that legal process is bound to be biased against the security forces because the state kept records and the IRA didn’t has been seriously undermined. Not that it ever made much sense, because the state kept records of variable quality on all types of cases.
Action against former paramilitaries can only be taken if the Historical Investigations Unit is allowed to proceed under guarantees of fair treatment according to the strength of the evidence. After a trial period of at least five years, a statute of limitations may become viable. In the meantime the objections of Professor Kieran McEvoy are convincing.
Chief Constable Jon Boutcher is currently heading up the investigation into the activities of the alleged former agent and head of IRA internal security. Boutcher’s investigation explicitly includes members of the IRA, British Army, security services or other Government agencies.
If such an amnesty is introduced, any evidence amassed by Mr Boutcher could not be used in prosecutions against security force or security services (e.g. M15) personnel. Would that guarantee extend to IRA members who were also British agents? Moreover, if he produces evidence against former IRA members, their lawyers are likely to argue that the statute of limitations (which would inevitably obscure the involvement of agent handlers) would represent an abuse of process against their clients.
In short, a statute of limitations for security forces would mean that any collusive element to cases such as Kingsmill, Claudy or Loughinisland would make prosecutions of the paramilitaries involved very difficult.
Arguments have been made that the rationale for the security forces amnesties was to redress a perceived imbalance between State actors and the treatment of paramilitary prisoners or suspects post-Belfast Agreement. Certainly, equality of treatment and non-discrimination are long established principles of both human rights and British common law. These arguments will be tested in court.
One argument has been a perceived imbalance in conflict-related prosecutions, particularly since Barra McGrory became Director of Public Prosecutions in 2011. However, as The Telegraph reported earlier this year, since 2011 seven republicans have been prosecuted, three loyalists, three soldiers and one police officer.
Another argument raised was that the early release provisions of the Good Friday Agreement did not apply to soldiers or police officers. That legislation, the Northern Ireland Sentences Act 1998, means that no one convicted of a pre-1998 scheduled offence can serve more than two years.
It is true that anyone convicted of an offence committed before 1973 – when ‘scheduling’ was introduced – is still liable to serve his or her full sentence. That anomaly needs to be addressed. However, there is nothing in the Sentences Act to suggest that soldiers or police officers would be ineligible for the two-year cap.
This article first appeared in Slugger O’Toole