The British government’s scheme whereby about 200 people were told whether or not they were wanted for prosecution was chaotic and badly run, but it was not unlawful, a top British judge has found. Such letters of comfort were issued to some people after the Belfast Agreement.

In February, an Old Bailey judge ruled that Donegal man John Downey could not be prosecuted for the 1982 Hyde Park bombing which killed four British soldiers because he had been given a letter by the Northern Ireland Office telling him that he was not wanted.

Mr Downey was arrested at Gatwick Airport on his way to Greece in May 2013 and subsequently charged with four counts of murder and causing an explosion.

The letter sent to him in 2007 was based on information given to the NIO by the Police Service of Northern Ireland, though the PSNI failed to do anything when it realised a year later that it had given the wrong information.

"I have been given no satisfactory explanation for this failure by the PSNI," said Lady Justice Hallett, who was appointed to lead an inquiry after Northern Ireland First Minister Peter Robinson threatened to quit because he had not been told about the scheme.

Released

Known as “on-the-runs”, many of the group would have been released from prison after two years under the Belfast Agreement. However, some had fled abroad after escaping from Northern Ireland jails, or because they believed they could face questioning.

Despite searing criticisms about the programme from the judge, former Labour ministers took comfort from her finding that it was not an amnesty, along with her verdict that nothing had been done to block prosecutions.

The Hallett review says the scheme was not regarded as secret or highly confidential within government circles, and there had been “sufficient references” made to its existence “to put an astute observer on the alert”.

However, Mr Robinson was not told about it, she accepted, nor was Minister for Justice David Ford after he was appointed when policing and justice powers were devolved to Stormont in 2010.

Blame

Blaming no one individual for all of the scheme’s faults, Lady Justice Hallett said, nevertheless, that she did “not understand” why Det Chief Supt

Norman Baxter

had failed to pass on information about Mr Downey’s true status to his superiors.

The on-the-runs scheme was “not designed, it evolved”, the judge found: “As a result, it lacked proper lines of responsibility, accountability and safeguards. When errors came to light, opportunities were missed to rectify them.”

Two other letters were wrongly issued. In one, a man was told that he was not wanted for questioning. In fact, he was wanted at the time in connection with a 2003 offence, though this interest was later dropped.

In another, problems existed about identifying a man because the wrong date of birth was used.

The Downey ruling was made on its own merits and would not prevent other prosecutions, she believed, while the mistakes that were made in the other cases could be corrected in “a measured and proportionate way”.

The number of requests from the NIO to the PSNI spiked in 2007 and 2008 on the back of strong, but not improper pressure for action from British ministers – who were, in turn, facing demands from Sinn Féin.

Complaints

Some PSNI officers had then complained that the checks being made were not thorough enough but these concerns “were not properly addressed by senior officers”, said the judge, who was appointed by British prime minister David Cameron.

Thirty-six people moved from being “wanted” to “not wanted”, she said. Their cases should be re-examined as a priority to see if the correct decision had been made because officers may have set “too high a threshold”.

Some cases were downgraded because only intelligence, rather than evidence which could be presented in open court, existed. However, officers believed other prosecutions would not withstand challenge in court.

Such a judgment is properly made “at a later stage”, the judge said. “The test for the investigator is simply whether or not there are reasonable grounds for suspecting that someone has committed an offence.”