How the system of “comfort letters” developed. Secrecy was important, Hain admits

Much of the ammunition Peter Robinson needs is already in Mr Justice Sweeney’s lengthy judgment in the Downey case. Key points in this Belfast Telegraph summary.

The administrative scheme began in 2000 to rectify the anomaly because as on the runs, they weren’t eligible for the early release scheme. The overall picture is of Gerry Kelly as Sinn Fein’s point man  with the British government on the issue,   coming forward regularly with new names and the legal authorities  led by successive UK Attorneys General refusing a collective approach more appropriate  for a legal  amnesty and insisting on a laborious case by case approach. That is why the system dragged on to 2007 . Clearly the process is initially  driven personally by Tony Blair and his chief of staff Jonathan Powell, with the lawyers dragging their feet. Powell   now claims that unionist rage is “completely misplaced.”

I don’t see why a letter to someone telling them they are not wanted for a crime is something relevant for anyone to know apart the police and the people they are writing to,” said Mr Powell.

“Again we are missing the point between an agreement on On the Runs which was very public – we were negotiating about it and failed to reach agreement on it – and factual letters saying you are not wanted.

But why were OTRs who for example  had escaped  from jail ” not wanted? ” You can hardly argue for lack of evidence there. And even if individual letters were  to be confidential, should not the  system  have been openly declared?

With all the to -ing and fro -ing  you can just about follow how such a catastrophic error as omitting that Downey was wanted by the Met even from the length of email chains. However for the wider purpose the judgment gives insight into how the system was supposed to operate. These extracts from the full judgment give a flavour.

Also on 2 May 2000 there were meetings at the Irish Embassy in London between officials from both governments and Sinn Fein. The Minutes of those meetings record that Jonathan Powell (the Government’s Chief Negotiator) indicated that the Government was prepared to operate a similar system in relation to OTRs to the one then being operated by the Irish Government. He indicated that if the Government was given a list of names, it would clarify with the police and the prosecuting authorities the position of those individuals and, where appropriate, would review whether it remained in the public interest to pursue a prosecution. He further indicated that it was thought that the Government could deal with, say, 12 names in a month– but no guarantee could be given on the outcome of any review, because that was an independent decision for the prosecuting authorities under the Attorney General.

It was against that background that on 5 May 2000, following negotiations at Hillsborough Castle which resulted in agreement as to a process for disarmament (and during which private assurances were again given to Sinn Fein that, one way or another, the OTR issue would be sorted out), and in the continuing absence of a legislative solution, the Prime Minister wrote to Mr Adams, as follows: “I can confirm that, if you can provide details of a number of cases involving people ‘on the run’ we will arrange for them to be considered by the Attorney General, consulting the Director of Public Prosecutions and the Police, as appropriate with a view to giving a response within a month if at all possible. You have also questioned whether it would be in the public interest to mount any prosecutions after 28 July for offences alleged to have been committed before the Good Friday Agreement, since by then all remaining eligible prisoners will have been released, and have raised other related issues around the 28 July date. I would be willing to have these matters considered rapidly, with the aim of deciding the way forward before 28 July. Prosecution decisions are, of course, a matter for the Director of Public Prosecutions and the Attorney General…..”.

 

From Peter Hain’s written  statement about how the failed  OTR legislation in 2005 was designed  to supersede the  administrative system  that  legal officers plainly disliked.. An amnesty is always on the list but quickly discarded. Invariably they revert  to the administrative system.  

  I was involved in the extensive discussions that surrounded attempts to bring legislation and/or to consider alternative mechanisms. When these could not be achieved, it was the administrative scheme that persisted. There were a number of exceptional features to the scheme. The first, of course, involved Sinn Fein being formally put on notice; individuals who otherwise might not know with any certainty that they could be subject to arrest were alerted. The second was that the scheme progressed in a non public manner. Confidentiality was maintained for the individuals who submitted their names to the scheme; neither the names of the applicants nor the outcome of the applications were subjected to publicity. There was in consequence an enhanced reliance upon internal checks being correctly done and correctly notified as the recipient was dependent upon and trusting in the sole evidence of an assurance, namely the letter he/she (or on his/her behalf Sinn Fein) received from the Northern Ireland Office. I am informed that the Court has been provided with internal documents that show that at a number of junctures discussion took place with a view to reducing to burden of verification that rested upon the departments concerned, but this was rejected on the basis that corners could not be cut.

 

In his first witness statement Mr Kevin McGinty ( civil servant adviser in NI matters to the Attorney General).

 I believe it was understood by all that at best this administrative scheme would identify those cases where individuals were not in fact wanted or where the evidential test could no longer ever be met. The prosecuting authorities accepted the administrative scheme with some reluctance. In part this was because the actual and perceived impartiality of the prosecution authority was of crucial importance to the maintenance of public confidence and the administrative scheme would only benefit one side of a divided community.

The letters made clear that the assessment was based on the evidence then available. That position could change. It was to the forefront of the minds of the prosecutors that if an individual who had received such a letter returned to the jurisdiction and started commenting publicly through the authorship of books, articles or appearance on television that they had in fact been involved in terrorist activity (which was not as farfetched as it may seem) public confidence in the criminal justice system would require the authorities to be able to act. It followed that the letter sent could never amount to an amnesty of absolute and final promise not to prosecute.

Peter Hain commenting  on the care taken by the NIO, ironically interesting in the  light of the error over the Downey letter for which  the PSNI was responsible      

… the British government did not intend individuals to be misled into believing they were safe to return to the jurisdiction and then be arrested. The opposite was the case; it was intended at all times that they should know with accuracy their position; hence the exceptional step taken from that time of the Weston Park talks and thereafter, of positively notifying Sinn Fein that particular individuals who had put their names forward were liable to arrest, an indication that no doubt allowed each to decide whether or not they might enter the jurisdiction in full knowledge of the risks if they did so. If despite what had been said in a letter to the contrary, Sinn Fein was thereafter informed that the individual concerned was still “wanted” he or she would have no doubt immediately been told; a transparent precautionary step would have in these exceptional circumstances been appropriately taken that would have allowed for the individual as well as the well being of the process as a whole to be protected from unintended risk, consistently with both the letter and spirit in which this unique scheme had been constructed.

 

Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London