“Just to confuse matters, some elements of the tale of the On The Runs appear to have been hidden in plain sight.”

BBC NI political editor Mark Devenport with, perhaps, the best description of the mechanism used to address the issue of on-the-runs.  From Mark Devenport’s BBC blog

While republicans insist unionists knew all about what was happening to the On The Runs, that is not strictly true.

Senior PSNI officers answered some questions posed by Northern Ireland Policing Board members and the scheme got a glancing reference in the voluminous Eames-Bradley report on dealing with the legacy of the Troubles.

But when former Northern Ireland Secretary of State Peter Hain withdrew his controversial On The Runs bill at Westminster, he never made a speech telling MPs that, in the absence of a special law, he would continue with an administrative scheme in any case.

To that extent the On the Runs were handled by “an invisible process”, a quote Mr Justice Sweeney’s Downey judgement attributes to Sinn Féin President Gerry Adams.

Just to confuse matters, some elements of the tale of the On The Runs appear to have been hidden in plain sight.

Indeed.  And if we were looking for elements of the tale [and we are! – Ed] then the case of Gerry McGeough would seem to be a good place to start.

The apparent side-issue of Royal Prerogatives of Mercy was dealt with during his appeal [July 2012].

But it’s the main trial where the real interest lies.  Here’s a lengthy extract about that trial from a post in the Slugger archive from September 2010.

We previously learned that a charge of attempted murder against McAnespie, a Sinn Féin party member and husband of a Sinn Féin Councillor, was dropped following the withdrawal of two witness statements.

[Prosecuting lawyer, David Reid] said two witness were recently revisited by police and made statements but within two days other people came to see them on four separate occasions and, while no open threat was made, they were left in no doubt that they were to withdraw their statements.

“The threat was implied and the elderly witnesses were left in a very frightened state,” Mr Reid said.

“Later one of them was out shopping and was called a traitor.”

UTV notes that McGeough told the court

…that in July 2000, Sinn Fein politician Gerry Kelly “conveyed to me that I was free to return to Northern Ireland without fear of being arrested“.

He told the court the alleged conversation came in circumstances where he was due to stand for selection process to decide if he would stand as a Sinn Fein candidate in the upcoming General Election.

And that

McGeough said he was visited by two RUC officers in a German prison in 1991 and thought extradition proceedings would be forthcoming but nothing happened and added that after he spoke with Mr Kelly, “I wondered at time if such a thing would happen”.

Under cross examination from a prosecution lawyer McGeough conceded that he did not receive assurance from “any prosecuting authority or member of the government” that he would not face prosecution.

The lawyer put it to McGeough that in a letter from the NIO in January 2003, “it as made clear that you were liable to prosecution and arrest should you be in the jurisdiction” but McGeough claimed that was “never conveyed to me”.

When I was given the assurances by Mr Kelly I was of the opinion that this matter had been resolved and in the context of the time, everyone was speaking about meeting in resolution of the conflict and former ‘enemies’ were sitting around the table,” claimed McGeough.

The BBC report an interesting addition to the court proceedings

The defence then called William ‘Plum’ Smyth, a former chairman of the Progressive Unionist Party, who took part in the negotiations that led to the signing of the Good Friday Agreement.

The party represented the views of the UVF, and discussed issues relating to loyalist prisoners.

He told the court that former Secretary of State, Mo Mowlam, had given verbal assurances to loyalists and republicans during those discussions about the fate of anyone wanted for questioning about conflict related offences.

William Smyth said this assurance was given during a formal meeting with Mo Mowlam at Stormont, in the presence of a number of senior civil servants, in March or early April 1998.

He claimed she said there would be no legal pursuit of anyone, loyalist, republican, police officer or soldier, for offences committed before 1998.

Mr Smyth said similar assurances were also given by the former secretary of state during a number of private, informal meetings.

And that is indeed the situation that then Secretary of State, Peter Hain, attempted to formalise by legislation in 2005 – until Sinn Féin were forced to publicly withdraw support for the arrangements.  As Peter Hain stated in January 2006.

“The Government could have proceeded with this Bill when the issue was first raised seven years ago. We could have done so when the Joint Declaration was made in 2003. But we did not because the IRA had not delivered on its promise to end its war. We waited until that happened.

“Every Northern Ireland Party vigorously opposed the Bill, bar Sinn Fein. Now Sinn Fein is opposed because they refused to accept that this legislation should apply to members of the security forces charged with terrorism-related offences.

“Mr Speaker, to exclude any members of the security forces who might have been involved in such offences from the provisions of the Bill would not only have been illogical, it would have been indefensible and we would not do it. Closure on the past cannot be one-sided.”

Back to the courts today, the BBC report also notes

The judge, Lord Justice Coghlin, then held a brief private hearing with lawyers representing the Northern Ireland Office.

Perhaps to discuss what was reported previously in the Sunday Tribune? [link no longer active]

In a document obtained under the Freedom of Information Act by Kevin Winters’ solicitors, the NIO says Sinn Féin provided the names of 216 on the runs. The PSNI and the Public Prosecution Service then reviewed files “to determine whether the individual is wanted for questioning, arrest or prosecution”.

The NIO said decisions were evidence-based and whether prosecution was in “the public interest”.

It claimed “political considerations play no part in this assessment”.

McGeough’s lawyers are demanding the authorities disclose “all material pertaining to any discussion, meetings and correspondence” relating to decisions not to prosecute certain republicans.

The former head of the PSNI’s serious crime squad, Norman Baxter, told a House of Commons’ committee last November: “There was an extremely unhealthy interest by (NIO) officials about prioritising individuals who were on the run and ensuring they were cleared to return to the North.”

There may have been some people grateful that there was not more fuss made of that at the time.  [Timing, eh?! – Ed]

And whilst it’s reported that Jonathan Powell has been keen to disassociate the administrative scheme from the failed legislative approach[and away from Mo Mowlam’s ‘government assurances’… – Ed]

Powell insists there was nothing secret about the attempted agreement. He wrote today: “It was a key issue in the negotiations that led to the Joint Declaration in 2003. The British government set out, in a separate paper, its proposals to legislate so that cases could be considered in a judicial process, which, if the person were found guilty, would lead them to qualify immediately for the early-release scheme established in 1998. On this basis, legislation was introduced to parliament in 2005, and withdrawn in 2006 in the face of strong opposition.

So there was nothing secret about the wish of the two governments to find a solution to the issue, and no party could have been unaware that the issue was central to securing the decommissioning of IRA weapons.”

He insists the letters sent were not part of any such aborted scheme. “They were written as an administrative response to questions about whether individuals faced the risk of arrest if they returned to the United Kingdom on the basis of existing evidence or warrants”.

…it was only after the failed legislative approach that Operation Rapid was established.  As the SDLP’s Alban Maginnis pointed out

“We have talked a lot about collusion in this House, and rightly so. Here was an act of monumental collusion between the British Government and Sinn Féin. Their secret postal service was a specially devised system to, as it were, bring relief to their IRA members. It was not done for the good of the peace. It was not done for the peace process. It was done for the selfish individual interests of Sinn Féin.

“That is the reality of the situation. It was a clandestine process. There is absolutely no doubt about it. Indeed, ‘The Irish News’ yesterday referred to it as being the next best thing to an effective amnesty. Where was there concern shown for the victims of the Troubles in all of that by either the British Government or Sinn Féin? Let us remind ourselves that Peter Hain introduced a Bill, the Hain Bill, to deal with the on-the-runs. That Bill was designed to undermine the rule of law, because, effectively, if you had been found guilty, you were immediately released.

“Mr Kelly is a very deficient historian, it seems to me. Hain introduced his Bill, which was thrown out because of extensive opposition from the SDLP and others. The fact is that that Bill was regarded by most people as a monstrosity. Despite the fact that public opinion and political opinion was against the Bill, the British Government reverted to the administrative scheme that had been in place for some time on an ad hoc basis. They put it on a systematic basis and institutionalised it. That is the problem, as I see it. That is represented by Operation Rapid, which was introduced in February 2007.

And that timing may suggest other reasons [March 2007] for Operation Rapid the sudden imperative that the former head of the PSNI’s serious crime squad, Norman Baxter, complained about…

Back to Gerry McGeough’s case, and another potential wrinkle.  As the BBC’s Conor Macauley now reports, during his trial Mr McGeough claimed that the [Sinn Féin] postman had failed to deliver his letter

Mr McGeough, who in 2000 was being considered as a Sinn Féin election candidate, appeared to assume from the conversation with Mr Kelly that he would not be arrested over the gun attack.

But seven years later, Mr McGeough was detained by police and sent for trial on a charge of attempted murder.

He took a legal challenge to try and have the case against him stopped, claiming he had an assurance that he would not be arrested.

In the course of the court action, Mr McGeough was shown a letter sent by the Northern Ireland Office to Mr Kelly in 2003.

It stated that having done the “necessary checks”, were Mr McGeough to return to Northern Ireland, he would be liable to arrest.

Mr McGeough told the court he had not been informed about the letter.

When asked why Mr Kelly would not have told him about it, Mr McGeough said that by 2003 he had left Sinn Féin due to “animosity” and he and Mr Kelly were no longer speaking to one another. [added emphasis]