In this blog I contend that the available evidence supports the argument that the RUC Special Branch operated without any legal constraints and was indeed a ‘force within a force’. The effect of this was as touched on, somewhat gingerly by the Chief Constable, in a recent speech. He  said this:

 

“The problem was much bigger and more complex than the “few bad apples” analogy that has been articulated previously. In the absence of any regulatory framework for managing “agents” police officers were left to set their own standards, they were unaccountable to the law because there was no law. They were unaccountable to their fellow citizens. Policing was being done in a vacuum that allowed unregulated practice. Honest individuals were placed in impossible situations, having to choose between bad and worse. Many people lived; but some people also died as a result of that practice.

The environment in which they worked was chaotic – terrorist attacks were happening on a daily basis, and many lives were being lost. Investigations struggled to keep pace with the rate of murder and serious injury.  The pressure was extreme. In these extraordinarily difficult and dangerous circumstances, the intent with which the vast majority of decisions were made was for the protection of the community. But they were, on many occasions, decisions and judgements that should not have been taken; and, I believe, would not have been taken if there had been a proper regulatory framework in place.

The RUC recognised the almost impossible situation they were in and the Da Silva Review makes reference to the fact that the RUC had asked Government for a framework, guidance or legislation on many occasions. Nothing was forthcoming.”

 

 

 

Let’s parse that:

• Police officers managed agents
• There was no regulatory framework
• Officers set their own standards
• They were unaccountable to the law
• There was no law
• Policing was being done in a vacuum
• There was unregulated practice
• The RUC had asked the Government for a framework, guidance or legislation on many occasions

 

 

Many police officers managed agents. Those in CID were regulated by the use of the Home Office guidelines.

 

Here they are. There was a later, almost identical version.

 

Our rcfncncc: POL/ 69 1050/1/1

Four rtftrtnct:

 

 

 

HOME OFFICE

Horsefcrry House, Dean Ryie Street, London S.W.i

Telex: 24986

Telephone: 01-834 6655, ext.

 

12th May. L969

 

 

 

Dear Chief Constable,

 

HOME OFFICE CIRCULAR NO, 97/1969

Informants who take part in crime

 

The Home Secretary’s attention has been drawn to judicial comment in the appeal of Cork, Colman and Macro and to criticism of police action in several other cases involving police use of informants who took part in crime . He sought information about police practice from the Commissioner of Police of the Metropolis and through H.M. Inspectors of Constabulary. The Central Conference on 6th March gave an opportunity for a general discussion of practices and principles.

 

2* The Conference fully recognised that informants, properly employed, were

essential to criminal investigation and that, within limits, they ought to be protected. The risks attached to their employment were obvious, however, and safeguards were needed before use was made of an informant taking part in crime.

The Conference appreciated that circumstances varied so widely that it was difficult- to establish rules of general application; but the discussion

identified the principles listed in the next paragraph.

 

3. The Conference in general agreed on the following points.

 

(a) No member of a police force, and no police informant, should counsel,

incite or procure the commission of a crime.

 

(b) Where an informant gives the police information about the intention of

others to commit a crime in which they intend that he shall play a part,

his participation should be allowed to continue only. where :-

 

(i) he does not actively engage in planning and committing the crime;

 

(ii) he is intended to play only a minor role; and

 

(iii) his participation is essential to enable the police to frustrate

the principal criminals and to arrest them (albeit for lesser offences

such as attempt or conspiracy to commit the crime, or carrying of

weapons) before injury is done to any person or serious damage to

property.

 

The informant should always be instructed that he must on no account act

as agent provocateur , whether by suggesting to others that they should commit offences or encouraging them to do so, and that if he is found to have done so he will himself be liable to prosecution.

 

 

 

Ac) ,

 

The Chi- f Constable

 

 

 

(c) The police must never commit themselves to a course which, whether to

protect an informant or otherwise, will constrain them to mislead a court

in any subsequent proceedings* This must always be regarded as a prime

consideration when deciding whether, and in what manner, an informant may be used and how far, if at all, he is to be allowed to take part in an offence.

If his use in the way envisaged will, or is likely to, result in its being

impossible to protect him without subsequently misleading the court, that must be regarded as a decisive reason for his not being so used or not being

protected.

 

(d) The need to protect an informant does not justify granting him immunity

from arrest or prosecution for the crime if he fully participates in it    with the requisite intent (still less in respect of any other crime he has committed or may in future commit),

 

(e) The handling of informants calls for the judgment of an experienced

officer, there must be complete confidence and frankness between

supervising officers and subordinates, and every chief officer of police

should ensure effective supervision of his detectives; a decision to use a participating

informant should be taken at senior level.

 

(f) Payment to informants from public funds should be supervised by a

Senior officer.

 

(g) Where an informant has been used who has taken part in the commission

of a crime for which others have been arrested, the prosecuting solicitor,

counsel, and (where he is concerned) the Director of Public Prosecutions

should be informed of the fact and of the part that the informant took in the commission of the offence, although, subject to (c) above, not

necessarily of his identity.

 

(h) Careful instruction should be given to detectives in training.

 

1. The Home Secretary fully endorses these broad principles. He feels sure that

they are already widely applied in the police service; but in view of recent public

interest he thinks it right to bring them to the notice of all chief officers of police. He asks that you will find means of commending them to everyone who may be concerned in your force. He has instructed H.M. Inspectors of Constabulary to pay particular attention, in the course of their inspections, to the arrangements made in police forces for supervision and training in these matters.

 

Yours sincerely,

 

 

 

 

The clue is in the title “informants who take part in crime”

 

Participating informants are a necessary evil. There is no point in having an informant who has the occasional drink with the targets. He has to be in the thick of things. His intelligence is vital in identifying the main criminals. But the handling of a participating informant has to comply with the Rule of Law. It matters not whether the crime is burglary or murder. The law does not distinguish between ‘ordinary crime’ and ‘terrorist crime’.

 

My contention is that the Home Office Guidelines were perfectly appropriate.

 

What do others say?

 

 

The Police Ombudsman said as follows in her report [Operation Ballast]  into the activities of the Special Branch.

“It is accepted by the Police Ombudsman that intelligence, in itself, is not evidence. However it may be possible to derive investigative opportunities from intelligence. There were mechanisms which were used by other police forces within the United Kingdom to prevent the failings of informant and intelligence handling identified in this Report. Those mechanisms should have involved clear and effective policies for informant handling, combined with regular training and effective intrusive management.

1. Although such systems were used, to some extent, by RUC CID, they were not used by Special Branch. In 1997 the RUC introduced new rules for informant handling and management. A decision was made by Chief Officers that those rules should not apply to Special Branch. The Regulation of Investigatory Powers Act in 2000 imposed statutory rules about the review, management, assessment and cancellation of informants. The Surveillance Commissioner found, following the referral of the matter by the Police Ombudsman, that those rules had not been complied with in the case of Informant 1, and that there had been a failure to meet National Minimum Standards and to take into account intelligence about Informant 1’s own criminal conduct.

Comment: even after the enactment of RIPA police officers were still not complying with the rules. This gives the lie to ‘Jonty’s’ assertion that what SB did during the Troubles was vindicated by RIPA.

1. 31.3  Informant handling is a sensitive and important task. Mechanisms did exist and were used by police forces in the rest of the United Kingdom (These were known as the Home Office Guidelines). They were not specifically designed for the purpose of terrorist informants. Nevertheless they would have provided a structure within which there would have been regular assessment of informants, clearly defined and auditable processes for intelligence handling, annual reviews of their contribution and situation, and control over any notified future occasions on which an informant was permitted to engage in crime.

Comment: O’Loan makes the assertion that the rules were not specifically designed for “terrorist informants”. Nowhere does she justify that.

This was the process known as “participating informants,” through which informants could be authorised, within defined limits, to engage in crime.

1. 31.4  This system was used by RUC/PSNI CID, to some extent, prior to 2000.
2. 31.5  The rules for participating informants were as follows:
   1. the police must never use an informant to encourage another person to commit a criminal offence;
   2. the police should not mislead a court about an informant’s role in the commission of a criminal offence, particularly where the informant had more than a minor role in the criminal act;
   3. No member of a police force, and no police informant, should counsel, incite or procure the commission of a crime;
   4. Where an informant gives the police information about the intention of others to commit a crime in which they intend that he shall play a part, his participation should be allowed to continue only where:

1. He does not actively engage in planning and committing the crime;
2. He is intended to play only a minor role; and

iii. His participation is essential to enable the police to frustrate the principal criminals and to arrest them, (albeit for lesser offences such as attempt or conspiracy to commit the crime, or carrying offensive weapons) before injury is done to any person or serious damage to property.

1. The need to protect an informant does not justify granting him immunity from arrest or prosecution for the crime if he fully participates;
2. Where an informant has been used, who has taken part in the commission of a crime for which others have been arrested, the prosecuting solicitor, counsel, and (where he is concerned) the Director of Public Prosecutions should be informed of the fact and of the part that the informant took in the commission of the offence, although, not necessarily of his identity.

1. 31.6  These rules were not applied by RUC Special Branch. Officers have stated that in the context of terrorism, they were “unworkable”. Attempts were made in the early 1990s to devise a satisfactory system, and approaches were made to Government for the adoption of a more flexible approach to terrorist informant handling. Government did not respond positively to those approaches.
2. 31.7  The Police Ombudsman has not been provided by the PSNI with any documentation which would indicate that any Special Branch informant whose activities were examined during this investigation, were given participating informant status by the RUC or PSNI for any of the crimes the investigators have examined. These include the suspected crimes of membership of a proscribed organisation and directing terrorism. Over the years informants were allegedly involved in a number of intelligence led operations managed by senior officers, in relation to situations in which the informants allegedly committed offences such as hijacking, unlawful imprisonment, possession of firearms and of explosives. For all of these offences there is no record of Participating Informant status being granted.

1. 31.8  The Assistant Chief Constable Crime Department has told the Police Ombudsman that a system for the authorisation of participating informants was developed by the RUC for Special Branch in 2001.

Comment: if this was the first system for the authorisation of participating informants it proves that SB were indeed a ‘force within a force’, seemingly unaccountable

1. 31.9  When information was received, Special Branch officers determined what intelligence should be disseminated to CID or Uniform police on a day-to-day basis. When there had been a terrorist murder, it was the responsibility of local Special Branch officers to liaise with the CID investigation team, to provide them with relevant information which could assist their enquiries. The Police Ombudsman has seen intelligence, which should have been passed to CID officers investigating murders, which was deliberately not passed to them, and was marked “No Downward Dissemination”.
2. 31.10  When it became necessary to arrest or charge an informant the Walker Report provided that this should only be done in the case of “planned arrests”. In accordance with the following rules; it must be

“cleared with Regional Special Branch to ensure that no agents of either RUC or Army are involved. A decision to arrest an agent must only be taken after discussion between Special Branch and CID. If agreement is not possible the matter will be referred to Assistant Chief Constable level. The charging of an agent must be the result of a conscious decision by both Special Branch and CID in which the balance of advantage has been carefully weighed.”

1. 31.11  RUC rules provided also that :
   1. Police officers should record as much intelligence as possible on official documentation since intelligence ‘held in an officer’s memory’ was unlikely to be properly exploited;
   2. Until 1995, CID “agents”who were members of “subversive organisations” should be handed over to Special Branch or, where this was not possible, they should be jointly handled by Special Branch and CID.
   3. Special Branch had primacy over CID in terms of joint handling of paramilitary informants, until 1995 when CID officers ceased to handle paramilitary informants.
   4. Officers should assess the continued employment of their sources in the light of the information available at the time.
2. 31.12  In 1997 the RUC adopted new rules for the “Management and Use of Informants,” modelled on rules produced by the Association of Chief Police Officers [ACPO] in 1995. A former Assistant Chief Constable told the Police Ombudsman in 2003 that Chief Officers of the RUC made a decision, in 1997, that Special Branch should be excluded from the operation of these rules. In 1998 a document was produced for the Patten Independent Commission on Policing, stating that all the rules did apply to Special Branch. This clearly was not the case. The evidence from officers is that there was no change in Special Branch practice until 2000.
3. 31.13  On 25 September 2000, the Regulation of Investigatory Powers Act 2000 [RIPA] came into effect. Under the Act informants are referred to as “Covert Human Intelligence Sources” [CHIS]. In August 2002 a

 “Covert Human Intelligence Sources: Code of Practice”, came into force in accordance with the Act.

31.14 The Regulation of Investigatory Powers Act also established the Office of the Surveillance Commissioners. Amongst the responsibilities of the Surveillance Commissioners is the review of the practices and procedures used, and the records kept in connection with the authorisations, review, cancellation and risk assessment of CHIS.

 

 

Here are extracts from the de Silva report into the murder of Pat Finucane

 

 

Guidance applicable to the Royal Ulster Constabulary

4.15 The only guidance in place relating to the use of informants by the police at

the time of Patrick Finucane’s murder was contained in a Home Office Circular,

the ‘Consolidated Circular to the Police on Crime and Kindred Matters’9 (‘the

Guidelines’). Although the Guidelines were issued in 1986, they were essentially

unchanged from previous guidance first issued in 1969.10 However, the RUC did

not apply either circular in Northern Ireland as they regarded them as inadequate

for dealing with terrorist-related crime.

 

 

Comment: This is incorrect. The guidelines were applied to the CID. De Silva contradicts himself later. Also, he appears not to have enquired as to the practical or legal objections to the application of the guidelines to the RUC.

 

4.16 A letter dated 21 January 1987 from the RUC to the Northern Ireland Office

(NIO) summarised the position as follows:

“[The Guidelines] take no cognizance at all of the special problems relating

to Northern Ireland. They were, of course, drawn up to deal with ‘ordinary’

criminals in a mainland context, rather than for coping with terrorists.

Given our special situation the restrictions placed upon us by virtue of the

guidelines are unrealistic if we are to continue paramilitary penetration/

source protection.”11

 

 

Comment: What is the ‘special situation’- how does a ‘civilian’ murder differ from a ‘terrorist’ one?

 

4.17 A paper subsequently prepared by the RUC for submission to the NIO in February

1988 set out a detailed analysis of the position, which they summarised as

follows:

“At present Special Branch in common with other branches throughout

the United Kingdom, has available to it only one set of guidelines upon

which to base its information gathering procedures and to conduct reactive

operations based on the information received. Those guidelines are set out

in the Home Office Consolidated Circular on Crime Kindred (sic) Matters.

They were originally drafted in 1969. In essence the guidelines seek to set

parameters within which the police can determine the degree and extent to

which informants are to be used in the investigation and detection of crime

and the prosecution of criminals before the courts.

By and large they have been successful in this respect and they continue to

meet the needs of the police in dealing with ordinary crime as no apparent

difficulty is experienced in adhering to the principles expressed therein.

However, major problems do arise when it comes to the application of the

guidelines to the terrorist scene, for here it rapidly becomes apparent that

strict adherence to the guidelines would result in a far from comprehensive

or effective intelligence network ever being recognised.” 12

9 Home Office Circular 35/1986

10 Home Office Circular Informants who Take Part in Crime, 97/1969

11 Letter from the RUC to the NIO, 21 January 1987

12 RUC commentary on the Home Office Guidelines on the Use of Informants, 11 February

 

Comment: Now the RUC are admitting that the guidelines should apply to their Special Branch, the same as all other UK SBs. But there are again “unspecified difficulties”.

 

 

4.40 A later submission to the Minister of State at the NIO, John Stanley MP, on

24 February 1988 attached a paper received from the RUC. As was noted in

the covering minute, “[i]t leans rather more towards an analysis of the admitted

problems than towards actual proposals”.33

4.41 The RUC’s submission noted that the Stalker Report had accepted “the

limitations of the Home Office Guidelines on the use of informants in Northern

Ireland ”34 and that the McLachlan Report had found that those Guidelines “must

be regarded as obstructive and confusing in the dangerous task of defeating

terrorism”.35 A detailed background paper by Assistant Chief Constable (ACC)

Monahan analysed “the gap between the demands placed on the intelligence

sector and its legal capacity to achieve its objectives”.36

 

Comment: It is not known what arguments Monahan made in this paper.

 

On 3 March 1988 the NIO wrote to the Home Office on the subject of the

Guidelines, noting that:

“… the Stalker/Sampson enquiry raised the question of the guidelines for

the police in dealing with informants in terrorist cases. The subject was

subsequently dealt with in some detail in the report of Mr Charles McLachlan,

a member of Her Majesty’s Inspectorate of Constabulary [HMIC], on his

special investigation of the RUC. The general thrust of the comments is that

the existing Home Office Guidelines on Informants are not appropriate to

police forces, particularly the RUC, in their counter terrorist operations.” 38

 

Comment: It is not known what comments McLachlan  made on this subject.

 

Information I have received from the Security Service indicates that the issue

was a topic of informal discussion for some months between the Attorney

General and the Security Service’s Legal Adviser. In a note dated 28 April 1989

recommending that the Home Office Guidelines be amended “to allow effective

but properly supervised use of agents in countering terrorism”, the Legal Adviser

summarised the problem as follows:

“… it can be argued that the Home Office Guidelines are undermined because,

in order to run a terrorist agent so as to gather intelligence or evidence, they

must be continually breached. If that is the case it is unacceptable in terms

of law enforcement. The law enforcement authorities should not be put in

such a position. The rights of the terrorists themselves to a fair trial should

not be jeopardised by non-observance of the rules. Agents’ rights should not

be put at risk by inadequate protection under the rules, particularly as to the

disclosure of their identity.” 50

 

Comment: my underlining-it is clear that the MI5 Legal Adviser does not see how a participating informant of the type being run can be operating within the rule of law.

 

 

4.59 On 12 December 1990, the Secretary of State for Northern Ireland wrote to the

then Home Secretary, the Rt Hon Kenneth Baker MP, enclosing a copy of the

new draft Guidelines produced by the Working Group.61 His letter summarised

the current position as follows:

“It has long been tacitly acknowledged that the current Home Office Guidance

on the use of participating informants was inappropriate in the current

terrorist context in Northern Ireland. That Guidance was drafted in 1969, ie

before the emergence of the current terrorist campaign, and it was therefore

designed essentially for ‘ordinary’ crime. Although the so-called ‘Home

Office Guidelines’ are not, of course, binding on the RUC in the absence of

any other guidance, they have been adopted as a general yardstick for RUC

operations, at least as far as non-terrorist crime is concerned.

 

Comment: this contradicts de Silva’s earlier statement that the guidelines were never applied to the RUC

The RUC have strongly represented – and have been supported in this by ‘outsiders’

like Mr Stalker and the late Mr McLachlan – that a completely new set of

Guidelines are required. They want Guidelines which would recognise the

need to allow informants providing vital intelligence to take part in serious

crime provided that certain criteria were met and under the strict supervision

of a senior officer.” 62

 

Comment: this is on the face of it, an extraordinary demand. The request is that participating informants should commit serious criminal offences and be not prosecuted, if they are providing “vital intelligence”. It suggests that this is already happening and that RUC SB simply want it “recognised”.

 

4.65 Blelloch’s Report was circulated by the then NIO Permanent Secretary, John

Chilcot, on 15 July 1992.67Blelloch produced a range of recommendations for

the better management and handling of agent activities in Northern Ireland.

However, as he noted in the Report, the question of the guidance to be issued

regarding the position under the criminal law of agents, their handlers and others

engaged in the intelligence process was one that he was not able finally to

resolve. He described the position as follows:

“It has long been acknowledged that the current Home Office Guidelines on

the use of participating informants are inappropriate in the current terrorist

context in Northern Ireland. The Guidelines were drafted in 1969 before the

emergence of the current terrorist campaign and were accordingly designed

essentially for dealing with ‘ordinary’ crime …

These issues were raised both by Mr Stalker and subsequently by Mr

McLachlan in their reports of 1987/1988. A NIO-led Working Party has since

drawn up, in 1990, a revised set of draft Guidelines … These have been

seen and endorsed by the Chief Constable of the RUC but have not, as yet,

received collective Ministerial approval. The Security Service have in the

meantime for practical purposes been following them, as have the Army.

The RUC in their somewhat different circumstances have not. There, for the

moment, the matter rests.

 

Comment: it is striking that MI5 and the Army, aka FRU etc seem to be content to use the new guidelines, but not the RUC. I wonder why?

The Nelson case has revived the issue. Source handlers and sources have

both queried, as well they might, what, with Nelson in prison, their position

now is and neither can at present be given a very satisfactory answer …

[T]here is something manifestly unsatisfactory about a situation in which

people are expected by Government to undertake difficult and often very

dangerous tasks without, as far they can see, any clear idea of the extent of

the support they can expect if things go wrong.

Nothing has emerged in the context of this review of agent handling to

suggest that the content of the [proposed] draft Guidelines … should be

revised: the problem is one of the status of the document, and, specifically,

the extent of Ministerial approval. The need to clarify this status seems to the

review team to be a matter of some urgency now, and, moreover, one that

will not go away …” [Emphasis in original]68

Chilcot’s letter of 15 July 1992 distributing the Blelloch Report also enclosed a

copy of a minute from the then Secretary of State for Northern Ireland, Sir Patrick

Mayhew. The minute endorsed the report but gave the following comment on the

section regarding agent-handling guidelines:

“… I believe the position is more straightforward than the Report suggests.

… The starting point is that an agent may not, and may not be ‘authorised’ to,

commit a criminal offence. A criminal offence, however, requires a criminal

mind: for all practical purposes no offence will be committed by an agent

whose act is not accompanied by a criminal mind – that is to say, a mind

desirous of the commission of the relevant offences.

Subject to the views of the Attorney General, I consider that, for example,

the ostensible membership of a proscribed organisation acquired by an

agent for the purpose of contributing to the prevention of the organisation’s

objectives is not criminal in character. Similarly, an act that is relevant to

the criminal law of attempt, is not criminal in character if it is done with the

purpose of permitting the actor to participate in the subsequent frustration of

the offence.” 69

 

Comment: let’s consider an example. Agent 1234 tells his handler that his ASU is going to plant a bomb below a policeman’s car. Agent 1234 is to pick up the device and deliver it to the planter. According to Mayhew [who I knew and liked] Agent 1234 has no guilty mind because he does not intend the bombing to take place and/or at the moment when he hands the bomb over it is merely an attempt , not an actual bombing.

4.67 Commenting on that suggestion in a minute dated 25 August 1992, the then

Attorney General, Sir Nicholas Lyell QC, said:

“I recognise there is a serious argument, as you suggest in your minute, that

someone who participates in a particular crime with the intention of actually

frustrating that crime is not guilty as a secondary party. But even if that is

right, and it must be recognised that the law in this area is not yet clearly

developed, it would not assist the individual who participates in a crime not

with the object of frustrating that particular incident but with the intention of

maintaining his cover in order to help the Security Forces generally or to

permit them to prevent a subsequent crime or to arrest those concerned

after the event.

 

Comment: here the Attorney General gets to the core of the problem. The issue that apologists for the Special Branch, like Dr Matchett, cannot answer. Agent 1234 not only hands over the bomb but he drives the bomber to the scene and the policeman is murdered. Is the Agent to receive an amnesty because to have intercepted the bomb might have betrayed the presence of an informer? How many such operations might be authorized for this agent?

It may be that the courts would also recognise a more general defence for

undercover agents based on considerations of expediency or necessity. But

again the very existence of such a defence, let alone its precise scope, is

uncertain and I see no way in which an informant could properly be told to

rely on it.

Clear evidence of motive and intention may of course be highly relevant in

the analysis of any potentially criminal conduct which comes to the notice of

the prosecuting authorities in relation both to sufficiency of evidence and to

consideration of the public interest. But it remains my firm view that this must

be a matter for the prosecuting authorities after the event and in the light of

all the circumstances. There cannot be a basis for the approval of guidelines

which might be said to purport to condone in advance conduct which would

properly be the subject of criminal proceedings.”

 

Comment: my underlining- here the A-G again gets to the core of the problem. No guidelines which pre-approve  serious criminal conduct can ever be legal.

 

4.69 Further insight into the Attorney General’s perspective can be gained from the

minutes of that meeting which noted, in relation to one of the options under

consideration (“Option 3: 1990 Guidelines to be approved by the Attorney

General ”), that:

“… the Attorney General could not approve any guideline which appeared to

condone in advance the commission of serious criminal acts. Responding to

the point that even were he brought to do it the pressure of the first difficult

case would make his position intolerable … [the Legal Secretary to the Law

Officers] agreed and added that the Attorney did not believe that this option

could be delivered.” 71

 

4.71 On 14 July 1993 Chilcot submitted a note to the Secretary of State setting out

the conclusions of the Interdepartmental Working Group, which he summarised

as follows:

“… the present situation is not satisfactory. The existing law appears to leave

agents, handlers, and others involved in the intelligence process – including

Ministers – unduly exposed. This has practical drawbacks (in terms of our

ability to run agents, who are vital to our work against terrorism) as well as

political and ethical ones.

There is much that can, and should, be done on a non-statutory basis to

improve matters. The Blelloch recommendations will help (although they

are primarily directed to army agent handling, whilst the underlying problem

affects all agencies). So will further elaboration of the existing schemes of

guidance and regulation within agencies, based around a common core

understanding both of the law and of best practice. Nonetheless, a stable

and satisfactory way forward, which is fair to agents, handlers and the others

could only (in the view of my group) be achieved by new legislation.” 74

4.72 Thereafter the Cabinet sub-committee on Northern Ireland, under the Prime

Minister’s chairmanship, considered papers from the Secretary of State for

Northern Ireland on 29 July and September 1993. An internal Home Office briefing

note dated 1 September 1994 summarised the results of these discussions

as follows:

“The Northern Ireland Secretary and the Attorney, with some support

from the Defence Secretary, argued strongly that a statutory solution was

necessary. The Prime Minister, the Foreign Secretary, the Home Secretary

and the Chancellor of the Exchequer all expressed grave reservations about

opening up such a sensitive area to Parliament when the slenderness of the

Government’s majority could not guarantee a satisfactory outcome.

Formally the meetings were not conclusive in that the committee left open

the possibility of legislation if further work by the NIO failed to identify a

satisfactory non-statutory solution.” 75

4.73 The changing political landscape in Northern Ireland, however, appears to have

diminished the impetus to resolve the problem. The briefing note goes on to

comment that:

“The issue has not subsequently been referred back to Ministers though

there have been occasional meetings of the NIO working group … Given

Ministers’ declared view and the new context created by the Joint Declaration

we have endorsed the NIO view that the issue is best played long. Moreover,

some of the alarm in the immediate aftermath of the Nelson case has abated.

The argument that increased uncertainty about the legality of particular

operations would make agent recruitment and handling more difficult was

probably overstated …

The PIRA announcement of a cessation of violence must increase the

possibility that the policy issue will quietly be laid to rest unless the police

and other agencies start to argue (as they have not yet done) that the law

needs to be changed to buttress their covert operations against other forms

of serious crime. The 1969 circular remains an embarrassment but the line

will have to be that the police and each of the agencies rely primarily on their

own internal (unpublished) guidelines and that they are, in addition, subject

to the ultimate oversight of the prosecuting authorities and the courts.” 76

4.74 Sir Patrick Mayhew minuted the Prime Minister on 28 May 1995 with the following

update on agent-handling:

“In my minute of 11 January I reported that the official Working Group on

Agent Handling remained of the view that the shortcomings in the existing

arrangements for running agents may satisfactorily be resolved only by

legislation, but that the absence of a suitable legislative opportunity and the

uncertainties over the peace process meant that the time was not yet right

to take a final decision on the matter …

With the [PIRA and loyalist] ceasefires in Northern Ireland continuing to hold,

the need to resolve the issue will not be compelling, unless the situation

deteriorates. I still consider that legislation is the only effective solution, as

officials have been unable to produce any viable non-statutory proposals.

However, I doubt there will be a suitable opportunity for legislation on this

topic in this Parliament … I suggest therefore that unless things change we

simply continue to keep open the possibility of legislating … on the issue

when an opportunity arises.” 77

4.75 The necessary legislation was eventually passed (under a different administration)

in the form of the Regulation of Investigatory Powers Act 2000 (RIPA).

 

Overview

 

4.85 As the running of agents lies at the heart of this Review, I have dealt with the

history of the applicable guidance at some length.

4.86 It is absolutely clear that there was no adequate agent-handling guidance

or direction whatsoever in the late 1980s. The 1969 Home Office Guidelines

had not been designed for a counter-terrorism situation and had, rightly, been

discarded.

 

Comment de Silva again falls into error. The guidelines had not been discarded by RUC CID. The CID ran agents, many of who were involved in terrorism.  What the Special Branch wanted would never have been granted, that is clear. They wanted rules to permit them to run agents who participated in serious crime, including murder. They ran these agents in any event, without the cover of the State. Therein lies much of what is appearing in the Belfast News Letter, under cover of the response to the legacy consultation. A police officer swears to uphold the law and to protect life. A soldier or an agent swears no such oath.

 

The FRU Directives and Instructions were manifestly unsatisfactory

and the Security Service similarly lacked any external framework for assessing

the extent to which agents could become involved in criminality. Successive

reports and representations from senior RUC, Security Service and (latterly)

Army officers had highlighted the fact that this situation was unacceptable.

4.87 In such circumstances the UK Government had a duty to provide an effective

statutory framework and clear policy direction. The issue was considered

extensively at Cabinet level and Government Ministers were clearly aware

that agents were being handled in Northern Ireland without reference to any

adequate guidelines because no such framework existed. Ministers nonetheless

continued to place a high priority on pursuing an intelligence-led approach to the

terrorist threat. The result of this was that agent-handlers and their supervisors

were being asked to perform a task – namely the penetration of agents to the

heart of a terrorist group – that, in some cases, could not be carried out in a way

that was both effective and lawful.

4.88 What was required was a clear statutory recognition that agents must be run at

the heart of terrorist groups; some recognised limits as to the extent to which

agents could become involved in criminal enterprises; and a rigorous regulatory

framework to prevent abuses. RIPA subsequently demonstrated the type of

statutory regime that should have been applied much earlier in the context of

Northern Ireland. However, it is doubtful whether RIPA and its associated Code

of Practice provides a real resolution to these difficult issues given that it provides

little guidance as to the limits of the activities of covert human intelligence sources.

4.89 Many of the grave issues relating to the involvement of agents in the murder of

Patrick Finucane must, therefore, be considered in the context of the wilful and

abject failure by the UK Government to put in place adequate guidance and

regulation for the running of agents.

[R/15] said that the gistthat he took from the Government’s response was, in effect, ‘carry on with

what you’re doing but don’t tell us the details’. This remained the attitude

until around 2000 when the effect of the Human Rights Act 1998 (HRA)

coming into force required the Regulation of Investigatory Powers Act 2000

(RIPA) to be passed to deal with the situation.” 81

 

Similarly,although RUC SB officers undertook training and received supervision, I have not

seen any evidence to suggest they were provided with training or briefing on the

legal implications of agent-running. This is, however, not particularly surprising

given the absence of a statutory framework on which to base any such training

or guidance.

 

So , let’s return to George’s bullet points:

 

• Police officers managed agents-yes
• There was no regulatory framework-incorrect, it just wasn’t applied to SB
• Officers set their own standards-looks like they did
• They were unaccountable to the law-they have got away with it so far
• There was no law-the law was ignored
• Policing was being done in a vacuum-wrong, policing is always done within the law
• There was unregulated practice-definitely
• The RUC had asked the Government for a framework, guidance or legislation on many occasions-yes, but what they wanted was undeliverable and would not be countenanced under RIPA

Final comment

There are no bad soldiers, only bad generals. RUC high command turned a blind eye to SB and all its works. The consequences were as Hamilton says , mistakes were made and lives were lost. There is no such thing as the ‘greater good’ as an excuse for facilitating murder.

The outcome is that the state and in particular the PSNI is concealing millions of documents that would , as in Ballast or de Silva, show the extent of malpractice.

Hundreds of cases turn on the availability of these documents.

It’s not only SFIRA who want to re-write history.