The father of an IRA murder victim is mounting a legal bid to have perjury charges brought against a west Belfast man for denying he was the top British agent Stakeknife.
Frank Mulhern wants to judicially review the Public Prosecution Service (PPS) over its alleged failure to have Freddie Scappaticci face criminal proceedings.
The High Court challenge centres on an affidavit sworn by Scappaticci in 2003 during his own failed attempt to force the British Government to state publicly he was not the spy.
Mr Mulhern’s lawyers contend the PPS acted unlawfully when it originally decided not to prosecute on the basis of that statement. Even though the decision was later set aside, they argue the continued failure to charge 70-year-old Scappaticci with perjury cannot be justified.
The case was due to get underway in Belfast on Wednesday but has now been put back due to the potential involvement of a senior police officer leading a major and ongoing investigation into Stakeknife’s activities.
Operation Kenova
Code-named Operation Kenova, the probe, led by Bedfordshire Chief Constable Jon Boutcher, is examining dozens of IRA murders linked to the undercover agent, including the killing of Mr Mulhern’s son in 1993.
Joseph Mulhern, 23, was abducted, interrogated and shot by the IRA, who accused him of being a police informer. His body was dumped on a remote hillside near Castlederg, Co Tyrone.
Scappaticci left Northern Ireland in 2003 after he was named in the media as Stakeknife. Before quitting his home he vehemently denied being the spy while in charge of the IRA’s internal security team, the so-called ‘Nutting Squad’.
In court on Tuesday, details emerged of the challenge against the PPS.
Hugh Southey QC, for Mr Mulhern, claimed the authority originally concluded there was sufficient evidence to prosecute for perjury, but decided against it because of a potentially viable defence that Scappaticci acted out of necessity based on fears for his life.
“The decision apparently has been withdrawn, and there’s no [NEW]decision as to whether there’s sufficient merit in a prosecution,” Mr Southey added.
Challenge will be resisted
Tony McGleenan QC, representing the PPS, confirmed the legal challenge will be resisted due to Operation Kenova’s continuing inquiries.
“We have an ongoing process of investigation and information gathering, it’s looking specifically at the issue the applicant raises, the perjury allegation, and the director [of public prosecutions] will in due course, when that exercise is completed, consider whether a further decision needs to be taken,” Mr McGleenan told the court.
Following submissions, Mr Justice McCloskey agreed to re-list the challenge for a hearing before the end of March, with Chief Constable Boutcher to be provided with all relevant material as a potential interested party.
Outside court Mr Mulhern’s solicitor, Darragh Mackin of KRW Law, claimed it was “clear from the evidence that the offence of perjury is made out”.
“The original decision not to prosecute took into account irrelevant factors, and our client now brings judicial review proceedings to compel the prosecution of Freddie Scappaticci without any further delay.”