"The meeting agreed that the following way forward should be given further consideration. That there should be a public statement made, possibly by written PQ, that the Government was prepared to take a systematic and broadly sympathetic view approach to individuals who had cause, or felt they had cause, to fear arrest on return to Northern Ireland. Where necessary, cases could be considered again by the Attorney General / DPP(NI) in the light of evidential sufficiency and, if necessary, on public interest grounds. Such a process, even if not resulting in any great number of cases being dropped would have the benefit of allowing individuals to determine where they stood in relation to the prosecuting authorities"
"Insofar as it is compatible with the proprieties of my position I will do what I can to assist. But the integrity of the criminal justice system is a fragile thing and in reaching any decision as to prosecution, acting outside Government as I do, I must not act for reasons of political convenience – however desirable any immediate effect may be. My decision has to be justifiable in terms of the test for prosecution that applies to every case, whatever its nature, considered for prosecution. Each decision that is reached in any case is susceptible to judicial review……so that I can only agree to a decision if I am satisfied that that decision can be justified before the courts. If the expectation is that the thirty-six persons so far named (and that total may rise) should be free to return to the United Kingdom regardless of the individual circumstances of their case that can only be achieved by legislative amnesty. It is not appropriate for me to consider the thirty-six cases on public interest grounds at this stage……..I will consider the current evidential sufficiency of each of the cases and will do so in accordance with the Test for Prosecution . I will ensure that the process is carried out promptly but I am sure you will understand that as Attorney General my first responsibility is to ensure the integrity of the criminal justice system and the propriety of decisions taken"
"…..I am seriously concerned that the exercise that is being undertaken has the capacity of severely undermining confidence in the criminal justice system in Northern Ireland at this most sensitive of times. Individual prosecution decisions have to be justifiable within the framework in which all prosecution decisions are reached and I am not persuaded that some unquantifiable benefit to the peace process can be a proper basis for a decision based on the public interest……"
"Following a review of your case by the Director of Public Prosecutions for England and Wales, he has concluded that on the evidence before him there is insufficient to afford a realistic prospect of convicting you for any offence arising out of… You would not, therefore face prosecution for any such offence should you return to the United Kingdom. That decision is based on the evidence currently available. Should fresh evidence arise – and any statement made by you implicating yourself in… may amount to such evidence – the matter may have to be reconsidered. The Crown Prosecution Service is nto [sic] aware of any police interest in interviewing you in relation to any other offence nor of any interest from anotehr [sic] country seeking extradition. If there were to be other outstanding offences or requests for extradition these would have to be dealt with in the usual way. This decision would normally be conveyed to you by the Police or to your Solicitor but as this is not possible the Attorney General has asked that I write to you."
"In the context of the agreement of May 2000 being implemented, it would be a natural development of the [early release] scheme for such prosecutions not to be pursued and would intend as soon as possible thereafter to take such steps as are necessary in their jurisdictions to resolve this difficulty, so that those concerned are no longer pursued….."
"On the basis of information currently available, there is no outstanding direction for prosecution in Northern Ireland, there are no warrants in existence, nor are you wanted in Northern Ireland for arrest, questioning or charge by the police. The RUC are not aware of any interest in you from any other police force in the United Kingdom. If any other outstanding offence or offences came to light, or if any request for extradition were to be received, these would have to be dealt with in the usual way."
"….I would also be grateful if you could ask the necessary people to look urgently into these new cases to establish their status in terms of whether they are free to return to the UK jurisdiction without facing prosecution."
"To discuss appropriate issues with the parties including through the implementation group…."
"Make special provision about certain offences committed, or alleged to have been committed, before10 April 1998 "
"Every Northern Ireland party vigorously opposed the Bill, bar Sinn Fein. Now Sinn Fein opposes it, because it refused to accept that the legislation should apply to members of the security forces charged with terrorism-related offences. To exclude from provisions of the Bill any members of the security forces who might have been involved in such offences would have been not only illogical but indefensible, and we would not do it. Closure on the past cannot be one-sided. That was, and is, non-negotiable. The process would have made people accountable for their past actions through the special tribunal before being released on licence. Sinn Fein has now said that any republican potentially covered by the legislation should have nothing to do with it. But if no one went through the process, victims who would have suffered the pain of having to come to terms with the legislation would have done so for nothing. That is unacceptable, and I am therefore withdrawing the Bill."
"As you are aware, your predecessors in office asked that consideration be given to whether or not certain individuals were free to return to the United Kingdom without fear of arrest…"
"The proposed legislation was in due course laid before the House, but it was not passed. I do not set out here the different objections that led to its abandonment. It was in this context that the already ongoing administrative scheme, although begun as a temporary measure, became the mechanism by which all of the "
"… in the absence of any statutory scheme, Sinn Fein through the Northern Ireland Office, began to provide the prosecuting authorities with names of individuals who were outside the jurisdiction and had ground for believing they might be subject to arrest or prosecution if they returned to the jurisdiction. 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 second reason was that it was not usual for an assessment of the evidence to be made in the absence of the individual concerned. The third reason was that where an individual was still wanted, to inform them that they would be arrested if they returned to the jurisdiction could amount to "tipping off"
"Should any further evidence come to light in the future to connect Downey with (the) explosion, the file should be re-submitted"
"That subject is not wanted by PSNI, however there is information to suggest that he is wanted by Metropolitan Police, I will request an up to date report from Metropolitan Police on current status of their circulation."
"1. Conspiracy to murder allegations relate to incidents that occurred in London 1982. It is not known where the conspiracy was carried out. 2. There is no evidence on file that would give me grounds to consider circulation by or on behalf of PSNI for any offence within the jurisdiction. 3. The evidence i.e. fingerprint does not specify that the fingerprint belongs to subject. He is however circulated on the PNC as being wanted by the Metropolitan Police. 4. I consider that the present circulation by/on behalf of Met Police should remain subject to further clarification from the English authorities."
"The above person is a native of the Republic of Ireland and is a citizen of the Irish Republic. He has not resided in Northern Ireland and remains resident in his native district. He is not currently "on the run" from his home. I have reviewed his case and there is no basis in my professional opinion to seek his arrest currently for any offence prior to the signing of the Good Friday Agreement. The above person should be informed that he is not currently wanted by the PSNI for offences prior to the Good Friday Agreement 1998, but it should be borne in mind that should new properly assessed and reliable intelligence, or new evidence which has been judged to retain its integrity, emerge which creates reasonable grounds to suspect his involvement in offences then he will be liable to arrest for any such offence which may have been committed during this period."
"the above person is not a resident of Northern Ireland and is a citizen of the Republic of Ireland. He has not resided in Northern Ireland and remains a resident in the Republic. He is not therefore currently "
"the original version of the review template did not specifically ask for an individual's Police National Computer (PNC) and/or Interpol numbers, or if such had been checked. Subsequent letters, however, from Head of Branch C2 made reference to enquiries indicating if the person was wanted by other UK forces or by any other country by Interpol. The letters stipulated that no enquires had been made with An Garda Siochana. It seems that it was practice for the review team to check for PNC entries and to check via Interpol liaison for international alerts but there appears to have been no formal means of recording, or apprising the Head of Branch of, the results of such enquiries (although in some of the older files there is a checklist which includes Gazette/PNC/Interpol). The current review team has examined whether individuals are wanted by the PSNI in connection with terrorist-related offences up to10 April 1998 (as per terms of reference). It has been practice, however, for the current team to examine ICIS for indications of PNC entries by examining the PNC ID field with the nominal's "view person" screen. This is the screen that opens when an individual is "searched" for by means of an ICIS unique reference number (URN). PNC itself is only accessed during "searches" when the individual is sought by means of a name and date of birth or age. The vast majority of this team's searches are done by means of an ICIS URN relying therefore on the accuracy of the PNC ID fields. Sample checks carried out today have revealed that ICIS cannot be relied upon in this respect. Ten people on our list of those recently reviewed have been scrutinised. None of the ten have entries in the PNC ID field but five are recorded when PNC itself is checked. Three of the individuals are alerted as wanted in Northern Ireland and two simply have PNC nominal entries. None of the ten were recorded as wanted by any other agency. (As discussed we did recently check one individual who was recorded on PNC as wanted in England and carried out further enquiries with the Met). It is now clear that we cannot rely on the ICIS "view person" screen and must carry out specific PNC checks on every individual. In response to the request below this office cannot state that "all checks with outside forces" have been carried out, as Interpol has not been consulted and earlier reliance on "
"The issue is probably resolved. As I understand it – if a person with a domicile address in Northern Ireland is wanted by police on mainland UK then the PSNI are formally notified and an entry is made against their nominal on ICIS. Similarly, if an individual is wanted outside the UK e.g. a European country then a current European Arrest Warrant is the formal and legal means of notifying the PSNI. Once again such an arrest warrant is logged against the nominal of an individual on ICIS. If ICIS checks are not flagging an individual as wanted by a GB police force or under a European Arrest Warrant then it is correct to report that that individual is not wanted by the PSNI on behalf of either a GB force or a European country. It would be impossible to check 100 per cent as to whether or not an individual is suspected of offences which have not reached a level of evidence to formally seek arrest and to do so throughout Europe. I hope this guidance is helpful. What we need to establish is the following "
"please see the views from HOB C2 which are forwarded for information. We will stick to our agreed principles and progress as necessary…"
"our review set out to establish if X is wanted for arrest by PSNI for any offences pre the Good Friday Agreement or circulated as wanted for arrest by an external force and the existence of reasonable grounds (within the UK) or a European Arrest Warrant. This can be established by an ICIS check (PSNIs computer system), checks with An Garda Siochana and the Police National Computer (PNC). These checks have all been carried out in relation to the letters forwarded to the Director of Public Prosecutions from the PSNI and they are the same checks which have been carried out during previous reviews."
"The letter from ACC Sheridan dated 27 June confirms that prior to forwarding all details to the Director of Public Prosecutions our review team conduct all searches through our own computer system ICIS, the Police National Computer (PNC) and checks with An Garda Siochana. This is the process conducted for all individuals reviewed prior to any letters being sent from this office and this will continue to be the case. To confirm, these checks have been carried out on the ten names in the 11 July letter"
"You have previously been in correspondence with the Northern Ireland Office about a number of individuals who are currently on the run but want to return to Northern Ireland and wish to be informed of their status if they were to do so. Following investigations made by the relevant authorities in Northern Ireland I can now confirm that the necessary checks have been completed on 10 more individuals. On the basis of the information currently held in respect of the 10 individuals, there is no outstanding direction for prosecution in Northern Ireland, there are no warrants in existence nor are they wanted in Northern Ireland for arrest, questioning or charge by the police…"
"I have been made aware that John Downey, an "
"The reason for the above application is that I served a term of imprisonment in Portlaoise prison in the Irish Republic in 1974. [Please see enclosed police cert] I was named in some British newspapers as being responsible for the Hyde Park & Regents Park bombings in 1982, which I strenuously deny. No warrant was ever issued by the British authorities to have me extradited and I understand from contacts which have taken place between the British and Sinn Fein that they, the British, have no further interest in me. I have strongly supported the peace process from the very beginning of the talks and I believe that the only way forward for all people on the island of Ireland north and south is in peaceful co-operation and mutual respect and understanding for each other…"
"… it is well established that the Court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial and (ii) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises…"
"(1) Even where delay is unjustifiable, a permanent stay should be the exception rather than the rule; (2) where there is no fault on the part of the complainant or the prosecution, it will be very rare for a stay to be granted; (3) no stay should be granted in the absence of serious prejudice to the defence so that no fair trial can be held; (4) when assessing possible serious prejudice, the judge should bear in mind his or her power to regulate the admissibility of evidence and that the trial process itself should ensure that all relevant factual issues arising from delay will be placed before the jury for their consideration in accordance with appropriate direction from the judge; (5) if, having considered all these factors, a judge's assessment is that a fair trial will be possible, a stay should not be granted."
"91. In the present case it is common ground that we are concerned only with the second category of abuse. That limb is not related in any way to resulting unfairness in the ensuing proceedings. (See Warren per Lord Dyson at paragraph 35.) Its purpose is the more general one of protecting the integrity of the legal system and thereby maintaining the rule of law. 92. The threshold for the second category of abuse is very high. The question for the court will be whether the court's sense of justice and propriety or public confidence in the justice system would be offended if the proceedings were not stayed. I do not understand Lord Dyson in Warren to qualify this very high threshold in any way. On the contrary his speech reaffirms it. 93. To establish an abuse of process under the second category involves more than the satisfying of a threshold condition. It requires an evaluation of what has occurred in the light of competing public interests. In Latif Lord Steyn explained as follows: "
"Discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court's disapproval of official conduct. Accordingly, if the prosecuting authorities have been guilty of culpable delay but the prospect of a fair trial has not been prejudiced, the court ought not to stay the proceedings merely "pour encourager les autres"
"[I]t may not always be easy to distinguish between (impermissibly) granting a stay in order to express the court's disapproval of official conduct "pour encourager les autres" and (permissibly) granting a stay because it offends the court's sense of justice and propriety. But it is difficult to avoid the conclusion that in Grant the proceedings were stayed in order to express the court's disapproval of the police misconduct and to discipline the police". (at para. 37). 95. It is possible to identify factors which are often taken into account by the courts in performing this balancing exercise. However, Lord Steyn's words of caution against general guidance as to how the discretion should be exercised remain of critical importance. As Lord Dyson observed in Warren (at paragraph 36), the exercise of the discretion depends on the particular circumstances of each case and rigid classifications are undesirable. In the context of criminal proceedings the balance must always be struck between the public interest in ensuring that those that are accused of serious crime should be tried and the competing public interest in ensuring that executive conduct does not undermine public confidence in the criminal justice system and bring it into disrepute. With those warnings firmly in mind, it is appropriate to consider what factors have been considered in the authorities to be indications of abuse of process. 96. The connection between the abuse of executive power and the proceedings which are said to be an abuse of process is likely to be a highly relevant consideration. Thus it will often be the case that but for the wrongful conduct the defendant would not be before the court at all. However, the existence of such a causative link is neither a pre-condition nor a conclusive demonstration of abuse. It is simply a relevant consideration. Thus in Maxwell the majority considered that the fact that the confessions on which a retrial would be based would not have been made but for the misconduct was not determinative of whether there should be a retrial. Similarly in Warren Lord Dyson observed: "
"In my view your Lordships should now declare that where process of law is available to return an accused to this country through extradition procedures our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of these procedures by a process to which our own police, prosecuting or other executive authorities have been a knowing party". (at p. 62G.) 99. However, it does seem to me that Mr O'Connor's approach in this regard is over-prescriptive. A case involving actual knowledge of illegality will necessarily be regarded as a particularly serious matter. However, the objective of maintaining the integrity of the legal system can be achieved only by a consideration of the entirety of the conduct in question and untrammelled by any rigid rules. Moreover, as Mr O'Connor himself submits, there are many gradations of states of mind including actual knowledge, wilful blindness, constructive knowledge and recklessness. The court should be free to reflect these matters in its examination of each case in the round. There may be situations in which reckless or possibly even negligent conduct could justify a stay on grounds of abuse of process. Everything will depend on an analysis of the particular features of each case in its entirety. 100. On behalf of the Secretary of State Mr O'Connor further submits that in a case of an alleged "disguised extradition" the party seeking to establish the abuse is required to prove not only a flagrant and knowing disregard of the law but also that the authorities colluded in or procured the deportation for some ulterior or wrongful purpose. I accept that it will usually be necessary to show that the UK authorities acted so as to procure the individual's removal to the United Kingdom. ( R v Staines Magistrates' Court ex parte Westfallen[1998] 1 WLR 652 .) However, I consider that here once again Mr O'Connor's suggested approach is unduly prescriptive. Clearly, the existence of a wrongful ulterior motive will be a highly relevant consideration. However the court must be free to consider the conduct in its entirety. 101. In Warren the Board recognised that in abduction and entrapment cases the court will generally conclude that the balance favours a stay. However, it was at precisely this point in his speech (paragraph 26) that Lord Dyson warned against the undesirability of rigid classifications and emphasised the need to balance competing interests. Clearly it is insufficient to label a case as falling within a particular category. A challenge on grounds of abuse of process calls for a more refined analysis of the facts and the balancing of the competing interests. It is, however, instructive to observe the approach of the courts to abduction cases given the Respondents' contention that it is in substance what has happened to them in this case."
"Powell: " to reassure the individuals concerned that they could return to the UK without fear of arrest. "
" an unequivocal statement… that they meant what they said… that the recipients thereafter believed that they were able to organise their lives accordingly. "
" the scheme only sought to identify those individuals who were able to return without fear of arrest. "
" The British government did not intend individuals to be misled into believing they were safe to return to the jurisdiction and then arrested "." (3) The nature and consequence of the detriment suffered by the defendant was relevant to the balancing exercise – particularly given that he was a proponent of the peace process. (4) As the prosecution accepted in oral argument, the defendant was positively misled. (5) Whilst the likelihood was that the letter was the product of error, that conclusion remained open to doubt given that the PSNI was aware in 2007 that the defendant was still wanted for the bombing; that as a result they needed to check with the Metropolitan Police what the current position was before deciding whether to issue a positive letter; and the assertion in the D/Staff Officer's email of 20 July to the NIO that such checks had been carried out (with the obvious implication that they have been negative). The failure by the prosecution to conduct a full investigation into the circumstances in which the letter was issued meant that there remained gaps and if, in consequence, the court was left in lingering doubt as to whether all relevant material had been obtained, then the indictment should be stayed for that reason alone. (6) If it was an error, it was the responsibility of the State – see e.g. Blackledge [1996] 1 Crim App R 326. (7) The State's culpability was very high – the prosecution had presented it as a "catastrophic" system failure. It involved both the PSNI and the Attorney General's office. The former because it was aware that the defendant was wanted, and was aware of the need to conduct PNC checks and to report their result accurately. The latter because, by July 2007, there was no real consideration or oversight by the Attorney General's Office and thus the letter was misleading. (8) The seriousness of the original "catastrophic" failure was compounded by the further failure, still unexplained, to put matters right in 2008 and 2009 as to which Mr Hain had commented; "
"What each letter was intended to reflect, was that on the basis of information then available to the authorities and carefully considered in each case individually, an assurance was being given that the individual would not be subject to arrest and subsequent prosecution if he or she returned to the United Kingdom…..The intention behind the British Government giving written assurances to individual OTRs was to try to resolve the issue given the failure to find a workable general approach and to provide individual letters that Sinn Fein could use to reassure the individuals concerned that they could return to the UK without fear of arrest". (10) As Mr Hain says in his witness statement: "
"There had been throughout the administrative process a reliance that those responsible for preparing and presenting an assurance (or a refusal) were in a position to provide an unequivocal statement. It was on that basis that Sinn Fein felt able to advise those who had sought its help in asking for such assurances, that they meant what they said and on this basis, that the recipients thereafter believed they were able to organise their lives accordingly." (14) It was equally appreciated by the Government that an error in telling someone that they were not wanted, when in fact they were, would be an extremely serious matter ("the worst outcome") both politically and legally – with the likelihood of an abuse of process application based upon a breach of the relevant assurance in the letter. (15) It was such concerns that led, amongst other things, to: (a) Correcting the error in relation to the individual referred to in the Attorney General's letter of29 January 2001 . (b) The rejection by the DPP(NI) and the PSNI in March/April 2002 of the more rough and ready (and therefore more high risk) approach then being mooted. (16) In March 2006 the defendant was told that he was wanted – albeit that the relevant letter was not clear as to whether that was in relation to offences in Northern Ireland, to the Hyde Park Bombing, or to both. (17) Operation Rapid commenced in around February 2007. (18) Checking the PNC was a straightforward process. (19) At the time of Operation Rapid's review of the defendant's case, it was aware that the defendant was wanted by the Metropolitan Police in relation to the Hyde Park bombing, but failed to pass that on to the DPP(NI). (20) That was, as the prosecution conceded, a catastrophic failure. (21) It was compounded by the fact that: (a) Operation Rapid was aware of the need to check whether an individual was wanted by another UK police force. (b) When specifically asked by the NIO (before the issue of the letter to the defendant) whether such a PNC check had been done in relation to the defendant (and others) Operation Rapid informed the NIO that such checks had been done, but failed to mention that the check in relation to the defendant had shown that he was wanted by the Metropolitan Police in relation to the Hyde Park bombing. (22) When the defendant received his letter he was entitled to and did believe that it was the product of careful and competent further work, and that there had been a genuine and correct change of mind about him – particularly given that he was a supporter of the peace process. He also believed, as a result of assurances (whether direct or indirect) from individuals in Sinn Fein who had been involved in the negotiations with the Government that he could rely upon the assurances given in the letter. (23) Hence he relied upon the assurance given by the Government that: "