The Kenova report questions the whole basis of dealing with the past. But will anybody take up its challenge?

Chief Constable John Boutcher’s tone was measured but his words were scathing. On the face of it, his three most striking conclusions throw dealing with the past into the melting pot all over again. I want here to deal with the wider implications of the interim Kenova report  on Stakeknife,.    These can be seen already,   in advance of the final version due for publication after the victims and families have responded to their individual private briefings.

Firstly the Stakeknife operation was responsible for more deaths than lives saved, a rotten egg rather than  an army commander’s boast  of “a golden egg” of military intelligence.  Moreover, lives saved were in single or low double figures rather than the  “hundreds” claimed.  A dismal record  by any measure  for such extravagant breaches of the law. For how can a police handler not break the law if he  conceals prior or retrospective knowledge of his agent’s murders? If the ends justify the means? But what if the ends, that is the results, are shown to be  meagre?

Secondly, Boutcher believes Stakeknife aka Freddie Scappaticci could and should have been prosecuted.   His verdict casts serious doubt on the conventional wisdom that evidence is no longer available in  the vast majority of incidents to bring prosecutions, and in the few attempts that have failed .

Based on his experience of long inquiry, Boutcher recommends an independent investigations unit  obviously similar to the Historic Investigations Unit recommended  in the Stormont House Agreement, but controversially rejected by the present government.  However he doesn’t write off  the  inquiry powers of the Legacy Commission that replaces the end of due legal process, if compliant with the European Convention  on Human Rights .

He  records his deep frustrations at the obstacles thrown in his way over seven long years by MI5, the Army and elements of the PSNI . To help counter their foot dragging, he wants to see a clear definition of “ national security” to permit wider disclosure from state records, making the judgement  that the main security threats have now been overcome.

The Public Prosecution Service which insists on  its own  limitations isn’t spared.

It is significant that no specialist or bespoke legacy division exists as part of PPSNI akin to, for example, the specialist Counter Terrorism Division (CTD) at the England and Wales Crown Prosecution Service (CPS). PPSNI has not had the funding to deliver the legal process to achieve best and timely outcomes for families in Northern Ireland.   

Thirdly, Boutcher calls for apologies from both the British government and the Republican movement. Saying sorry is easy; but is either side willing to accept responsibility for candid disclosure?

The  Northern Ireland Secretary of State has delayed his response; but if precedent is followed, there will be a repetition of bland assurances without specifics. As the main source of evidence will lie in state records, this is a crucial area , conditional amnesty having been ruled out by most parties.

All this creates a sharp headache for former DPP Keir Starmer if he becomes prime minister.  He has pledged to repeal the Legacy Act; but to replace it with what?

As for the Republican movement, we have had warm words from Michelle O’Neill. But noone in their  right mind would hold her meaningfully responsible for the IRA campaign whatever she thinks of it. Names have been thrown around like Gerry Kelly, still serving in politics. No one in the discussion I heard even bothered to utter the name of Gerry Adams. There are cracks  in omerta  but it broadly holds. If the state were to open up would former IRA members respond?  Hardly without an amnesty, and even then….. Where would pressure come from? Families or wider public opinion?

But Boutcher’s verdict on the uneven balance between lives lost and gained isn’t going unchallenged.

On Kenova’s publication day l dipped into to a remarkable lengthened edition of   Talkback  to hear how the  Kenova report has loosened up the debate already.

Taking part was William Matchett, a former CID inspector who has become a historian of the police record  with  “The Intelligence War that Beat the IRA.” Matchett talked about other Stakeknives, one of them in charge of a nutting squad on a line between Castlederg and Rostrevor  that made Scappaticci look like a tea party and would have nothing to do with him.

Ben Lowry  writes in the Newsletter:

I spoke to some senior members of the security forces yesterday and, while they are not yet ready to speak on the record, suffice to say for now that they view with contempt Mr Boutcher’s claims that the way Stakeknife was handled as an agent cost more lives than it saved. It is, they say, obvious that the success in the running of informers overall saved huge numbers of lives and indeed was a key reason why the IRA gave up its campaign in the 1990s.

I was struck by h £4ow little criticism there was of the whole concept of the Kenova investigation when it was launched in 2016. Instead of celebrating the success of the security forces in penetrating the most active terrorist movement in western Europe, we were (it seemed clear even then) assuming culpability on the part of their handlers. The questions at yesterday’s press conference showed that the media focus was on state failures.

We will report much more on this in the coming days. But at first sight, for all Mr Boutcher’s references to the difficult choices facing agent handlers, there seems to have been an elementary failure to understand the horrendous ethical dilemmas facing intelligence operatives in dealing with informants from a brutal terror group – dilemmas that are discussed in ethics classes by students at universities when still in the teens.

The Newsletter wages a campaign against what  they call ” one sided justice” criticising the state more than the paramilitaries who were responsbile for most violence. Boucher condemns the lack of strict protocols for handing agents  but there was a chain of command. What is there to prevent senior former  security forces chiefs  talking more about what they know if  legal jeopardy is not involved?  At least it would be a start. Ronnie Flanagan are you listening?

However. Is there much stomach for a fight if – big if – the families are broadly satisfied?  So far Kenova has not ignited a major row.

The Assembly parties are united against the Legacy Act and in favour of  restoring legal  process for opposite reasons, but they have other fish to fry.  The Conservatives want  to bury the whole thing and beat the patriotic drum and protect old soldiers.

And Labour?  Perhaps they will take the whole tragic affair more seriously and protect the Rule of Law.   Imagine that!

The Kenova report’s recommendations.  

(1) Establish, on a statutory basis and with express statutory powers and duties, an independent framework and apparatus for investigating Northern Ireland legacy cases.

(2) Subject all public authorities to an unqualified and enforceable legal obligation to cooperate with and disclose information and records to those charged with conducting Northern Ireland legacy investigations under a new structure.

(3) Enact legislation to provide procedural time limits enforced by judicial case management to handle cases passing from a new legacy structure to the criminal justice system.

(4) Review and reform the resourcing and operating practices of PPSNI in connection with Northern Ireland legacy cases.

(5) The longest day, 21st June, should be designated as a day when we remember those lost, injured or harmed as a result of the Troubles.

(6) Review, codify and define the proper limits of the NCND policy as it relates to the identification of agents and its application in the context of Northern Ireland legacy cases pre-dating the GFA.

(7) Review the security classification of previous Northern Ireland legacy reports in order that their contents and (at the very least) their principal conclusions and recommendations can be declassified and made public.

(8) PPSNI should pay due regard to the views, interests and well-being of victims and families when considering the public interest factors relevant to prosecution decisions in Northern Ireland legacy cases.

(9) The United Kingdom government should acknowledge and apologise to bereaved families and surviving victims affected by cases where an individual was harmed or murdered because they were accused or suspected of being an agent and where this was preventable or where the perpetrators could and should have been subjected to criminal justice and were not.

(10) The republican leadership should issue a full apology for PIRA’s abduction, torture and murder of those it accused or suspected of being agents during the Troubles and acknowledge the loss and unacceptable intimidation bereaved families and surviving victims have suffered.