A former IRA man interviewed for an American university project has lost a legal battle to stop police accessing his confidential tapes.
Lawyers for Anthony McIntyre claimed detectives should not be allowed to access the Boston College material due to errors in the International Letter of Request (ILOR) setting out alleged offences under investigation.
But judges in the Belfast High Court ruled that any flaws in the process were not due to bad faith on the part of the authorities.
Dismissing the challenge, Lord Chief Justice Sir Declan Morgan on Monday gave Mr McIntyre's legal team two weeks to confirm intentions to appeal the verdict.
It means police are not yet be able to examine recordings which have already been transported from the United States to Belfast.
Sir Declan said: “We will direct that the material should be held in secure storage, under seal, at the Royal Courts of Justice.”
Mr McIntyre was one of the main researchers in the Boston College project to compile an oral history of the conflict in Northern Ireland. Dozens of loyalists and republicans provided testimonies on the understanding their accounts would remain confidential while they are alive.
But those assurances were dealt a blow after police secured transcripts and tapes of interviews given by former IRA woman Dolours Price and high-profile loyalist Winston ‘Winkie’ Rea.
Now detectives want access to Mr McIntyre’s recorded recollection of his own IRA activities as part of investigations into alleged terrorist offences stretching back more than 40 years.
A subpoena seeking copies of his interviews was served on Boston College by the British government. The move involved an ILOR setting out alleged offences being investigated, including a bomb explosion at Rugby Avenue in Belfast in 1976, and membership of a proscribed organisation.
Although the tapes were released and flown from America, they remain under seal within the court pending the final outcome of the legal challenge.
Mr McIntyre, who is from Belfast but now lives in the Republic, is seeking to judicially review the PSNI and Public Prosecution Service (PPS) for issuing an ILOR his lawyers claim is littered with inaccuracies.
They insisted that he was the victim in the bombing, and that he was acquitted of the membership charge that features in the ILOR.
Other alleged mistakes said to feature in the letter include an armed robbery incident for which McIntyre was never convicted. The ILOR should have been withdrawn because of the amount of errors within it, Mr McIntyre’s barrister claimed.
Counsel for the PPS argued that mistaken information in the original correspondence had been corrected and regularised. He also rejected any suggestion that police and prosecutors were pretending to investigate the Rugby Avenue incident as an act of “subterfuge” to gain access to McIntyre’s Boston College tapes.
Instead, he contended, the former IRA man’s legal case was “built on sand”. Sir Declan, sitting with two other senior judges, held that the errors in the ILOR were due to “a distinct and surprising lack of care on the part of the PSNI and the PPS”.
However, he concluded the flaws were not material to the request. “We do not consider that the errors in the ILOR were indicative of bad faith,” the judge said.
Dismissing the challenge, he added: “Although we are minded to accept that there was interference with the private life of the applicant, we are satisfied that there was no breach of Article 8 of the (European) Convention (on Human Rights).”
In a statement issued after the decision, Mr McIntyre’s solicitors said the judgment came as a “ disappointment” and the case would be appealed to the UK Supreme Court in the coming weeks.