‘Doubly cruel’ for Joe Lynskey family to learn exhumed remains are not his
Seanín Graham, Irish Times, March 25th, 2025
The Disappeared: For the second time in a decade, hopes of family of former Cistercian monk have been dashed
Joe Lynskey was one of 17 people abducted, killed and clandestinely dumped or buried by republicans.
It is “doubly cruel” for the family of Joe Lynskey to learn that human remains exhumed from a Co Monaghan cemetery are not his, according to the lead investigator searching for IRA Disappeared victims.
Jon Hill, who oversees the Independent Commission for the Location of Victims’ Remains (ICLVR), said he was “crestfallen” when he received the call confirming that results of DNA tests on the remains - exhumed from a grave in Annyalla village cemetery four months ago - were not a match for Mr Lynskey.
“You realise that the next thing to do is to break it to the families – which you know, it’s going to be hard,” Mr Hill said on Monday.
It is the second time in a decade that the hopes of the Lynskey family had been raised, and then dashed.
A former Cistercian monk from west Belfast who became an IRA intelligence officer, Mr Lynskey (40), was abducted, killed and buried by the IRA in 1972 after he was reportedly involved in a relationship with the wife of another IRA man – who he ordered to be shot without being sanctioned by the organisation.
First of The Disappeared
He was the first of the 17 people “disappeared” by republican paramilitaries during the Troubles. To date, remains of 13 of the victims have been recovered.
On Monday, the commission also confirmed that the DNA examination results do not match those of the family to whom the grave belongs, or any of the remaining Disappeared.
An Garda Síochána has notified the local coroner and said attempts have begun to “determine the correct identification of the remains”.
In 2015, a search for Mr Lynskey on remote land at Coghalstown in Co Meath led to the unexpected discovery of the remains of Kevin McKee (17) and Seamus Wright (25).
The commission was set up by the UK and Irish governments during the peace process to investigate the whereabouts of the Disappeared.
Its small team of experts work on a part-time basis, with many living in England and travelling to Ireland for the searches.
Mr Hill paid tribute to the “stoicism” of Mr Lynskey’s niece, Maria Lynskey (77), when he delivered the news last Friday.
“It’s quite extraordinary,” he said.
The exhumation in Co Monaghan was “not undertaken lightly”, with many legal processes to go through, he added.
Doubly Cruel
“It’s the families that suffer. All of this is cruel, to kill their loved ones and bury them in these circumstances, but particularly for the Lynskeys – it’s doubly cruel in that on two occasions now we have found remains that we believed could, or would, have been Joe Lynskey – and proved not to be him,” Mr Hill said.
“This hasn’t happened to any of the other families.
“It’s not just the sadness of the search being undertaken and finding nothing, but finding something that gives them hope for quite a long period of time.”
With the passage of time, obtaining information has become more challenging.
“The indications from the republican movement are that those who could provide the information around where Joe Lynskey is buried, are dead,” Mr Hill said.
“That doesn’t mean there’s no one left who would know where he is - we’ve been in this position before and circumstances have changed.
“So they weren’t able to provide the detail that we needed to suggest where he’s buried. Also, in fairness, they also didn’t dismiss completely that he was buried at that cemetery – because they just don’t know where he is.
“In fact, they were hopeful that it would be where he was. A number of people approached us with information in relation to this dig. It’s the amalgamation of those pieces of information put together. Once one piece comes in, we start to investigate that, and as we go further along, that kind of corroborates what we’ve been told in the first place.
“Gradually, it improves the quality of it to the stage we thought this was justified in taking it further forward into an exhumation.”
Renewed Appeal for Information
Mr Hill made renewed appeals for information on the remaining Disappeared.
As well as Mr Lynskey, Co Tyrone teenager Columba McVeigh, British Army captain Robert Nairac, and Seamus Maguire, who was in his mid-20s and from near Lurgan, Co Armagh, remain undiscovered.
“We have other strands of information that we will examine more carefully now that this has been eliminated; we will continue on, we will appeal again in relation to all the Disappeared,” he said.
“Bear in mind, none of us are full-time. We’re all part-time employees, we’re dipping in and out when there’s work to be done. We react to whatever comes in as quickly as we are able.
“But it is a massive demand… we have to manage all of that along with the expectation of the families.”
'We had funeral planned': Joe Lynskey's niece on pain at finding remains not her uncle’s
Kurtis Reid, Belfast Telegraph, March 25th, 2025
MYSTERY SURROUNDS IDENTITY OF REMAINS FOUND IN CO MONAGHAN GRAVE AFTER COMMISSION CONFIRMS THEY ARE NOT THOSE OF FORMER MONK FROM WEST BELFAST MURDERED BY THE IRA
The heartbroken family of Joe Lynskey had planned his funeral before it was confirmed that remains exhumed from a Co Monaghan grave late last year were not his.
Mr Lynskey, a former Cistercian monk from the Beechmount area of west Belfast, was abducted and murdered by the IRA in 1972.
In November, remains were recovered from a rural graveyard plot belonging to the family of the former Bishop of Ferns, Brendan Comiskey.
Mr Lynskey's family members were hopeful that DNA testing would confirm the remains were those of the republican.
However, the Independent Commission for the Location of Victims' Remains (ICLVR) has now announced that they are not.
They also do not belong to anyone from the family to whom the grave belongs.
Gardai will try to identify remains
Gardai have contacted the local coroner and will try to identify the remains.
Speaking to the Belfast Telegraph, Mr Lynskey's niece Maria Lynskey said the family were informed on Friday that the DNA of the remains exhumed from a grave in Annyalla Cemetery on November 26, 2024 did not match theirs.
“We're devastated. We're really devastated about it,” said Ms Lynskey.
“Everything had been so positive about it, especially the press and the person who was talking.
“They really made us feel like it was him after all this time.
“We were told on Friday evening that the remains did not belong to him.”
The ICLVR said: “The results of the DNA examination of the remains have now eliminated them as being those of the family to whom the grave belongs and have also eliminated them as being those of Joe Lynskey or any of the Disappeared.
“All the interested parties, including the Lynskey family, have been informed.
“We know that this news is deeply disappointing for the Lynskey family, and the thoughts of everyone in the commission are with them at this most difficult time.”
Mr Lynskey went missing in the summer of 1972, and for more than three decades his family believed he had moved to America, with even some unverified reports of him being seen in the US.
Dolours Price
However, it wasn't until 2010, when former IRA member Dolours Price confessed, that his case was added to the list of the Disappeared — individuals who were killed and secretly buried by republican paramilitaries.
A depiction of the disappearance of Mr Lynskey is featured in the Disney+ and FX series Say Nothing, released in November last year, in which he is played by Co Down actor Adam Best.
The series portrays Mr Lynskey being murdered over suspicions that he attempted to have another IRA volunteer killed having had an affair with his wife.
The attack was at first blamed on the Official IRA, before it was discovered that Lynskey had ordered it.
He was collected from his west Belfast home and driven to Co Monaghan, where he was handed over to a local unit of the IRA.
The show depicts Mr Lynskey being driven over the border by Price (played by Lola Petticrew), who is then haunted by his presence in the episodes thereafter.
A devout Catholic, he was said to have spent his last days in captivity praying.
While the series debuted on the streaming service around the time the remains were discovered, it is understood that this was purely coincidental, despite Say Nothing appealing for those who may have information to get in touch with the ICLVR.
Ms Lynskey admitted this search felt different to others and that the family was confident the remains would prove to be match.
“We were given the impression it was him,” continued Ms Lynskey, who has led the campaign to find her uncle's remains since the story came to light in 2010.
‘We this was it’
“I had everything arranged. We had a funeral planned and we had a priest ready to hold it. It was so positive — everything we read about it just seemed to suggest that this was going to be him.
“It feels like a never-ending story. We're emotionally drained, to tell you the truth. It really affects us.
“The timing of the discovery was good; we just thought this was it.”
Ms Lynskey said she wanted to pay tribute to and pass on her respects to the Comiskey family.
The grave site that was exhumed belongs to the family of the Bishop of Ferns, Brendan Comiskey, after the ICLVR said it had received information relating to “suspicious historic activity” during the 1970s at the site in Annyalla, which is located between Castleblayney and Clontibret.
It was believed a sixth body found in the site belonged to Mr Lynskey.
“I really want to say that my family is very grateful to the Comiskey family. Very grateful,” said Ms Lynskey.
“It was devastating for them to have to open this grave, and I really want to say how much we appreciate that they did that.
“Unfortunately, it wasn't successful for them either. And while I've never spoken to them directly, the commission has, and I just want to say how grateful we are.
“My own mother is buried, and I wouldn't want her grave disturbed.”
Ms Lynskey said it is “not easy to be positive” during the attempts to locate her uncle's remains.
In 2015, previous searches took place in Co Meath, which led to the discovery of the remains of Kevin McKee (17) and Seamus Wright (25), who also disappeared in 1972. Both were found to have been shot in the head, with the pair from west Belfast murdered after being accused of being informants.
“It's not easy trying to stay positive,” Ms Lynskey said.
“We had the dig before, and it turned out it wasn't him.
“But with the timing of this coffin, the publicity surrounding it… it really led me to believe it was him.
53 years since he disappeared
“It'll be 53 years this year, and we didn't even know about it [Mr Lynskey's murder] until about 15 years ago.
“I really didn't want to get my hopes up this time.
“I really didn't.”
The family's disappointment has changed Ms Lynskey's approach to the ongoing search for her uncle.
“I'll be negative the next time going into it. I definitely won't let myself get to where I was with this one again. Definitely not,” she said.
She added that she is about to go on a last-minute holiday in a bid to “get away from it all”.
Lead investigator Jon Hill described the news as “cruel” for the Lynskey family, but said the ICLVR would continue to follow leads.
“The commission is completely committed to this cause,” he told BBC News NI.
“There was never definitive information saying this is where Joe Lynskey was buried.
“They [the Lynskey family] have been disappointed before.
“It is just so cruel that it is the same family that this event has happened to now on two occasions. It is especially cruel, but I don't know what more we can do about that.
“We can only undertake what we believe to be right.
“We have tried to manage their expectations throughout, but of course they will have expectations and hopes.”
The head of the Catholic Church in Ireland said he could “only imagine how distressing it has been” for the family.
Finding ways of helping families - Archbishop Martin
Archbishop of Armagh Eamon Martin told BBC Radio Ulster's Good Morning Ulster: “I think this really reminds us, it really does, about the difficulties and the awful legacy of our past and how we are very conscious now of finding ways of really helping all families to be able to cope with the awful legacy and hurts of what happened in our conflict.
“I think the families of the Disappeared have been amazing witnesses for us, very courageously showing us about how they can comfort one another even through awful and terrible times, like it has been for the Lynskey family this last number of months.”
In its statement, the ICLVR added: “The commission will continue to do everything in its power to locate and recover the remains of all of the outstanding Disappeared cases.
“We would again appeal to anyone with information relating to Joe Lynskey, Columba McVeigh, Robert Nairac or Seamus Maguire to bring it to the ICLVR, where it will be treated in the strictest confidence.”
Mr Lynskey is one of the 17 Disappeared — people who were abducted, murdered and buried in secret by republican paramilitaries during the Troubles.
Benn urges anyone with information to come forward
Secretary of State for Northern Ireland Hilary Benn said: “I am saddened to hear that the exhumation undertaken by the Independent Commission for the Location of Victims' Remains in the search for Joe Lynskey has been unsuccessful.
“My thoughts are with his family, who have faced decades of uncertainty and heartache.
“I thank the ICLVR for its tireless commitment to reuniting the families of the Disappeared with their loved ones. Today's news is a reminder of the importance of this humanitarian work.
“Every piece of information, no matter how small, could help bring closure and peace to these families who have waited so long for answers.
“I urge anyone who may have information that could help locate Joe's remains or those of Columba McVeigh, Captain Robert Nairac and Seamus Maguire to come forward in confidence to the ICLVR.”
ICRIR admits a data breach
Connla Young, Crime and Security Correspondent, Irish News, March 25th, 2025
A BODY set up by the British government to investigate the past has been thrown into fresh controversy after it emerged the names of 25 people who contacted it have been disclosed.
The Independent Commission for Reconciliation and Information Recovery (ICRIR) has apologised after the names of 25 people, described as “principally requesting individuals” (Ris), were sent out in an email.
Requesting individuals are among those who can ask for an investigation into a Troubles-related incident to be carried out.
The ICRIR was set up last year after the introduction of the legacy act. The Court of Appeal later found that a British government veto over sensitive material that can be disclosed by the commission to relatives of the dead is incompatible with human rights laws.
Many people affected by the Troubles strongly oppose the ICRIR, believing it to be part of British government attempts to protect state participants from accountability. Its chief commissioner is former lord chief justice Declan Morgan, while former senior police officer Peter Sheridan heads its investigations.
While the Labour government plans to repeal the Act, it intends to retain the ICRIR.
It has now emerged the names of 25 people were disclosed to a recipient who had previously sought assistance from the commission.
“This was caused by an administrative error in an email address field,” the ICRIR said.
No sensitive information disclosed
“No sensitive or special category information was disclosed.
“The mistake was discovered within several hours and addressed swiftly.
“The recipient has confirmed the information was deleted.”
The ICRIR said all “affected Ris” have been contacted with an apology and the “offer of further advice or support”.
“All other RIs, including those no longer with the commission, have also been advised,” the statement said.
“The commission takes very seriously its responsibilities in protecting the privacy of individuals and the security of information entrusted to us.
“The commission is very sorry for this error.”
The ICRIR said an “internal investigation is now under way” and a “full report” has been sent to the Information Commissioner’s Office.
Asked if those impacted have been offered or received financial compensation as part of the “offer of further advice or support” and for details of those affected who are not Requesting Individuals a spokeswoman for the ICRIR said: “In relation to your query we would you refer you back to our statement on the website.”
The troubled legacy body has come in for criticism in the past.
Earlier this month it emerged a PSNI officer was recruited to work for it while still on the police payroll.
Concerns were raised last month after it emerged that ten former RUC officers and staff are employed by the commission.
Sir Declan Morgan leads the ICRIR
In January the commission was forced to remove a “myth busting” document from its website after concerns were raised that it contained “inaccurate” information.
Daniel Holder of the Committee on the Administration of Justice said: “Rather than being a one off this is one of a series of mistakes or issues emanating from the ICRIR in its short existence.
Mr Holder said the commission needs to be replaced.
“Trust in and support for the ICRIR was always minimal due to the purpose for which it was created, but has not been helped by elements of its conduct,” he said.
It's time the State said sorry to my murdered dad
Austin Stack, Irish Examiner, March 25th, 2025
Prison officer Brian Stack was shot in the back of the head in March 1983 as he walked from the National Boxing Stadium after the national senior finals and died 18 months later from his injuries.
Last Thursday, as I walked through my local shopping centre in Portlaoise, something unusual happened. I had gone to the shopping centre to sign copies of my new book, Justice For My Father. As I was walking back through the main shopping area, a young man in a tracksuit approached me — he was probably no more than 20. As he reached me, he held out his hand and said “alright Mr Stack”.
Anybody who has ever worked in a prison will tell you this is the greeting prison officers usually get from ex-prisoners if you meet them outside the prison environment. So I wasn’t surprised when the young man told me he had served a few very short sentences.
He told me he had heard I was now retired from the prison service and he wanted to wish me well. In doing so, he told me while he knew I had to be tough on them sometimes, he appreciated I was always fair and treated the prisoners as human beings.
He then wished me well with my book and said he hoped I got justice for my dad, which I found strange, as he would have been born at least 20 years after my dad was murdered.
When I got home, I began to think about this encounter and what it meant — it showed me just how like my dad I was in the way I managed my relationships with prisoners and how I had subconsciously learned so much from him.
Treating prisoners as human beings
My dad was Brian Stack, chief officer in Portlaoise Prison at the height of the Troubles. This was not a good time to be head of security in what during those dark days was being described as Europe’s most secure prison.
The IRA campaign had spilled south of the border, and they had routinely murdered gardaí, robbed banks, kidnapped people, as well as horses. They were also very good at smuggling bomb-making Semtex and other weapons into the prison in their attempts to effect escapes.
My dad was very diligent and security focused and he also made sure those working with him equally kept their eye on the ball. However, even in this tense working atmosphere, he managed to treat prisoners as human beings, and many former prisoners who spoke to me during my time in the prison service explained how he did small things for them that meant a lot at the time.
My dad was also very much aware of how much the job was taking out of his colleagues and he tried to counter this by organising sports days, road races and quiz nights for the staff and their families.
These events, while being a release from the tough job they did, also created a sense of comradery and a bond among the staff, and it must be noted that during dad’s tenure as chief officer, the IRA did not manage or attempt an escape.
During this period, my dad became aware through an informant that a senior prison officer was aiding the IRA and in particular was supplying them with keys to particular gates they would need in the event of an escape attempt.
Not wanting an escape to happen on his watch, he would change locks on gates every month to make the keys the IRA had acquired redundant. This, coupled with the fact he had organised late-night searches for a gun that had been smuggled into the prison, meant the IRA needed to ensure my dad was no longer a problem for them, as they were planning a major escape.
Shot in the back of the head
On March 25, 1983, an IRA team shot my dad in the back of the head as he walked from the National Boxing Stadium after the national senior finals. His life was saved that night by doctors from Belfast who were attending the boxing, but he spent six months in a coma, and when he woke, he was severely brain damaged and was paralysed from the neck down.
He died 18 months later from his injuries. At the time, the IRA issued a statement denying responsibility, but in reality, they were the only ones with the motive and ability to carry out this attack.
The murder of a prison officer was a capital offence at the time, and it was a direct attack on the State. So you would expect the State’s response would be to leave no stone unturned in finding those responsible. Unfortunately, this is not what happened.
In 2007, I became aware that despite some good eyewitness evidence and material evidence being available from the crime scene, nothing had been done to bring this evidence into a useful resource for the investigation.
In fact, it appears the original investigation was shelved after about a month. The cold case review of the investigation carried out by the Garda Serious Crime Review Team uncovered 196 shortcomings in the original investigation.
Despite a fresh investigation being ordered by the Garda Commissioner, I had no faith it would deliver results, and I was proved right when in January 2012 the gardaí declared to me they did not believe the IRA were responsible for the attack.
IRA meeting
The rest of my family and I really felt badly let down by this declaration and it put us in a position where we had to find answers elsewhere. This led to my brother, Oliver, and I being put into a blacked-out van and driven up to the border to meet with the IRA, who gave us an admission that an IRA unit acting under orders but not sanctioned from the army council had carried out the attack that resulted in dad’s murder.
This immediately disproved the Garda viewpoint that the IRA had not been involved, and along with other serious errors through three separate investigations, this led to the family receiving a written apology from the Garda Commissioner in July 2019.
My dad was murdered by the IRA, but the State he was defending has let him down badly and has failed to recognise this. It says a lot about society when a young ex-prisoner who was born 20 years after the attack could show more concern for my dad’s case than an uncaring State.
The minister for justice should make a State apology to my dad — he deserves this and much more.
Protecting Britain’s Deep State - Part 2
Uncovered Day 2: Boutcher, Scappaticci and the secretive world of MI5
By John Ware, Irish News, March 25th, 2025
Scappaticci calculated he’d survive because like a global sized bank he’d be seen by the IRA as too big to fail
In the second part of John Ware’s forensic investigation into how the Northern Ireland justice system has been used to protect informers and hide embarrassing secrets, he sets out how a former director of public prosecutions believes damage was caused to the integrity of the judicial system by the failure to prosecute Freddie Scappaticci for perjury and explains how Jon Boutcher has “squared up” to the security and intelligence establishment in an “unprecedented” way.
In April 2006, the government’s strict NCND policy - neither confirming nor denying sensitive intelligence matters - was again at risk of being undermined.
And once again, that risk came from Freddie Scappaticci.
His sham judicial challenge to NCND in 2003 seeking to overturn the government’s refusal to deny he was the British agent Stakeknife, was in danger of unravelling.
Of course, winning his case had been the last thing Scappaticci wanted.
Which was why, when he lost, he and the government were delighted.
Scappaticci knew that winning would have meant the government having to reveal his true status – that he was Stakeknife.
Instead, he’d cynically exploited the courts with his elaborate legal charade, insisting that since he wasn’t Stakeknife, the government had an obligation under Article 2 of the Human Rights Act to reduce the risk to his life from the IRA by confirming this.
For Scappaticci, judicially reviewing NCND was about optics: face-saving for the IRA leadership while trying to convince the wider republican movement that he hadn’t been a traitor so he could continue to live in Belfast for a while longer.
For the government, it was all about protecting him and, crucially, preserving NCND.
That’s why the Attorney General, the Northern Ireland Office, the MoD and MI5 had gone along with it.
But now, almost three years on, the Police Service of Northern Ireland had just opened a criminal investigation into whether he’d committed perjury during the proceedings.
Those proceedings had been triggered by an affidavit he’d solemnly sworn on May 21, 2003 denying he was Stakeknife or an agent by any other name which he knew was a flat lie.
The PSNI also knew it was a lie but they’d been most reluctant to investigate, having resisted eighteen written submissions to them and to the Public Prosecution Service.
These submissions were from Jane Winter, the director of the former NGO, British Irish Rights Watch and Ian Hurst, a dissident ex handler in the army’s Force Research Unit (FRU) that had recruited and run Scappaticci.
Neither knew the shenanigans that had led to Scappaticci’s sham judicial review of NCND policy.
They did, however, know that Scappaticci’s affidavit was false because Hurst, as a former member of FRU knew it.
Legal action against MI5 is the ‘next step’ for vindication for scores of survivors and people bereaved by the Manchester Arena attack, a tribunal has been told
For months, the PSNI resisted Hurst and Winter’s demands on the grounds that a criminal investigation would have infringed NCND policy in a matter which had been adjudicated by the Lord Chief Justice Carswell.
Only after the Police Ombudsman Nuala O’ Loan intervened did the PSNI finally agree to investigate.
Of course, a decision to prosecute Scappaticci for perjury would have been tantamount to the state admitting he was indeed Stakeknife.
It seems clear from Kenova’s interim report published last year that from the outset MI5 sought to limit the scope of the PSNI investigation.
MI5 knew that Scappaticci had sworn three further affidavits between 2003 and 2006 in support of a separate set of civil proceedings in his attempt to limit media scrutiny of his background. Furthermore, each of these affidavits referred to the first false affidavit he’d sworn on 21 May 2003.
However, MI5 disclosed only that first affidavit to Detective Chief Superintendent Philip Wright, the Senior Investigating Officer in charge of the perjury investigation. The Public Prosecution Service’s senior lawyer reviewing the case has also said the other three affidavits were not disclosed to the PPS either.
It is abundantly clear” said Kenova that “additional information about the further affidavits should have been disclosed by MI5 to PSNI.”
Why precisely MI5 disclosed only the first of Scappaticci’s four affidavits is unclear. Some lawyers have speculated had all four been disclosed it would have made any defence to the charge harder to sustain because the prosecution could have presented his perjury not as a one-off event, but as a campaign of perjury.
MI5 also told the PPS lawyer that work on the case would have to be restricted to a laptop provided by them. Nor would the PPS be permitted to retain copies of documents.
The PPS lawyer is now retired but agreed to respond to some of my questions. Asked if it was felt MI5 had tried to dictate the conduct of the inquiry, the lawyer told me: “If you mean whether the Security Service sought to dictate the prosecutorial process, the answer is no, they did not and would not be allowed to do so under any circumstances.”
DCS Wright appears to have soon concluded there was no case to answer against Scappaticci.
In December 2006, he recommended to the PPS that the police take no further action.
He told the PPS that everyone concerned with the case accepted that because of the risk to his life from the IRA, Scappaticci had little alternative but to perjure himself. He could therefore avail himself of a legal defence known as “defence of necessity/duress of circumstance”.
This is a rarely used defence normally restricted to defendants so fearful of their imminent death or serious injury that they had no choice but to commit a crime – in Scappaticci’s case, perjury.
Kenova package
Yet just days before Scappaticci swore his false oath on May 21, 2003 insisting he wasn’t Stakeknife and that he was in fear of his life, MI5 had assessed that there was no immediate risk to him from the IRA.
Clearly, that was no guarantee of his safety in the longer term, so great was his treachery.
But MI5 had twice offered him an alternative to committing perjury: resettlement for him and his family - offers he had rejected.
Neither the Police nor the PPS had heard directly from Scappaticci as to how fearful he’d actually been given that not only had he rejected resettlement, but he’d also insisted on returning to Belfast 36 hours after being named in newspapers as Stakeknife.
For an objective test of Scappaticci’s mental state, in February 2007, the PPS directed the PSNI to interview him under caution. Wright passed on this instruction to MI5.
In August, the PPS was told that MI5 had had Scappaticci psychiatrically assessed and that he had been treated for depression. Although he was capable of giving evidence, were he to be subjected to further criminal investigation, his depression would likely be triggered to such an extent that he would become unfit for interview. Furthermore, were he to be charged, he had threatened to kill himself.
The PPS lawyer handling the case has told me the PSNI was asked to revisit this “to determine if they considered that an interview was possible.”
In November, however, the PSNI told the PPS “they were unable to interview the individual and requested that a decision as to prosecution be taken.”
The PPS appear to have accepted this without requiring a psychiatric report independent of MI5 - as, I am told, would normally be the case in respect of other suspects. “Otherwise, no one would ever get interviewed” as one former detective put it.
The following month, as recommended by the PSNI – and without having heard directly from Scappaticci himself but only what MI5 averred he had told them – the PPS accepted he had a defence of necessity/duress, and would therefore not be prosecuted.
No prosecutions arose from the Operation Kenova report
How viable was that defence?
Even Scappaticci himself seems to have calculated he was in no immediate danger as evidenced by his insistence on returning to Belfast 36 hours after being exfiltrated to England by the intelligence services.
And given the wily political animal that he was, Scappaticci also knew that of all the years immediately following the 1998 Good Friday Agreement, 2003 would have been the worst possible time for the IRA to so obviously revert to violence, and in such a high profile way.
The IRA was under growing pressure to help restore the collapsed power-sharing executive by demonstrating it was no longer active, by decommissioning weapons and abandoning its military structure.
The last thing the IRA leadership wanted during this precarious period was front page photographs of the man it had entrusted with protecting IRA volunteers from informers, meeting an informer’s grisly end in a cross-border ditch - to say nothing of the turmoil and disenchantment with the leadership that would have unleashed within the republican movement’s ranks.
Furthermore, the IRA leadership had suspected Scappaticci was an agent since at least 1992, if not before, when he was under strict orders to remove himself from the IRA. He’d survived ever since for the same reason that he calculated he’d survive when he rejected MI5’s resettlement offer: like a global sized bank, he’d be seen by the leadership as too big a figure in the republican movement to fail, especially at such a critical moment in the peace process.
So, what precisely was the source of the “duress?”
I understand MI5 reported that Scappaticci had told them that the idea of judicially reviewing the government’s refusal to neither confirm nor deny he was Stakeknife, arose from his meeting with two senior IRA members on his return to Belfast. This simply adds to the unseemly picture of an elaborate charade being played out with the interests of Scappaticci, the Provisional IRA and the British government, for once in perfect alignment - the Faustian pact to which I referred to on Monday in Part 1 of this series.
And if Scappaticci’s meeting with the two IRA men was indeed the source of duress as I gather was argued by MI5, then neither the police nor the PPS ever heard that argument from Scappaticci himself.
Furthermore, a defence of necessity/duress depends significantly upon the accused being able to demonstrate he had no choice but to lie in the face of imminent peril.
Not only was Scappaticci assessed by MI5 not to be in imminent peril; their offer of resettlement represented a clear choice – one he had flatly rejected on several occasions in favour of his preference for continuing to live in Belfast.
The fact that a defence of necessity/duress hinges on the imminence of the threat, and absence of choices explains why “running it as a defence is near impossible” explained a barrister who has also sat as a judge. It’s not about what a defendant might “prefer.”
The PPS, however, concluded that a court was more likely than not to acquit Scappaticci of perjury, without having tested the strengths and weaknesses of such a defence with the man himself being questioned under caution.
At the same time, the PPS gave no explanation for its decision not to prosecute Scappaticci for perjury.
A brief letter dated January 9, 2008 to Jane Winter of British Irish Rights Watch whose campaign had secured the PSNI’s reluctant perjury investigation, stated only that the “Test for Prosecution” hadn’t been met.
It avoided disclosing why the test had not been met whereas the PPS’s “Code for Prosecutors” had recently advocated the reason in No Prosecution decisions.
As we now know, the PPS had concluded Scappaticci failed the “evidentiary test” for prosecution because he was considered to have a viable defence of necessity/duress.
Had Scappaticci been prosecuted for perjury in 2008, the consequences may well have been profound.
Prosecution would have exposed his attempt to force the government to depart from its adherence to NCND by Judicial Review for the sham that it was because the last thing Scappaticci wanted was a court order requiring ministers to reveal his true status as Stakeknife.
It might also have provoked questions about the independence of the Judiciary from the Executive.
Kenova package
There was also the Lord Chief Justice of Northern Ireland’s decision to take over the case from another judge after treasury counsel – at the behest of MI5 and the Attorney General - had disclosed to the LCJ that Scappaticci had lied on oath.
Prosecution also risked revealing that the criminal investigation under Sir John Stevens had been investigating Scappaticci’s suspected involvement in more than a dozen executions and abductions of fellow agents.
That in turn could have triggered questions about the misleading PII certificate which Northern Ireland minister Jane Kennedy had been asked by MI5 to sign to ensure the Lord Chief Justice knew Scappaticci was indeed the agent Stakeknife – and not to disclose this to anyone else in court.
The certificate mentioned only that Scappaticci’s intelligence had saved lives – with no mention that he was also suspected by the Metropolitan Police Commissioner of multiple murder.
The PII procedure is entirely dependent on the state being trusted with providing a balanced factual account of the national security issue it seeks to protect from public disclosure.
As it was, the evidence Stevens had gathered about Scappaticci had been packed away in 32 boxes in 2006 where it lay until 2013 when the Police Ombudsman Dr Michael Maguire called in independent analysts to review the material.
PONI’s report which contained new material linked Scappaticci to up to 18 murders.
In 2015, Maguire referred the matter to the then Northern Ireland DPP Barra McGrory KC.
“It made for very disturbing and chilling reading” McGrory told me on Panorama in 2017. “It paints a picture of an intelligence gathering operation at the upper levels of the IRA ..during which many, many terrible things happened.”
McGrory had formally requested the PSNI to conduct a new criminal investigation into Stakeknife. He also asked the PSNI to review the PPS’s 2007 decision not to prosecute Scappaticci for perjury after finding “serious concerns in relation to this decision.”
He’s now revealed those concerns for the first time.
He told me that despite having been appointed DPP in 2011, and pressing for progress on the outstanding investigations into Scappaticci, he had not been informed by the PPS of the previous perjury decision until 2015.
When McGrory reviewed that decision he said he found it to be “unsustainable on the available evidence at that time.”
He explained that even though in 2007 the PPS had decided Scappaticci had a viable defence of necessity/duress, Scappaticci himself had not made that case ”to the investigating police”, and also the available evidence “contradicted that potential defence.”
McGrory also said that as a matter of law, defence of necessity/duress should be determined by a court, rather than the PPS “except perhaps in very exceptional circumstances”.
He added: “Nothing like those circumstances appeared to me to have been made out within the information made available to investigating police and the PPS when that decision was taken.”
Nor had “an independent medical report” been sought as to Scappaticci’s fitness to be interviewed under caution as would “normally” have been the case.
And since the perjury allegation arose out of Scappaticci’s attempt to judicially review NCND whose “proceedings had caused very considerable damage to the integrity of the administration of justice in this jurisdiction” McGrory said he was also concerned that the PPS decision had given “insufficient weight to the consequent damage of that particular act of perjury to the integrity of the Northern Ireland justice system”.
Finally, the PPS had neither consulted outside senior counsel, nor informed the Attorney General’s Office in London which would normally have happened in cases of this sensitivity.
After Operation Kenova reinvestigated the perjury case, I understand Jonathan Laidlaw KC independent counsel to Kenova advised there was a viable prosecution case against Scappaticci for perjury.
Accordingly, in 2019 Kenova submitted their prosecution file to the PPS in Belfast. It also invited the PPS to rule on whether by swearing a false statement for his sham judicial review, Scappaticci had perverted the course of justice.
The file also included evidence for consideration of misconduct in public office by two MI5 officers and the senior PPS lawyer who handled the perjury case for their roles in the 2007 investigation.
On the day that this file and several other initial Kenova prosecution files were due to be delivered, MI5 informed Kenova they couldn’t proceed stating that the PPS building’s security accreditation had expired.
It was a further five months before MI5 allowed the files to be submitted.
In October 2020, the DPP Stephen Herron announced that there was no case to answer against the two MI5 officers. He said the three additional affidavits that MI5 had not disclosed to either the PSNI or the PPS had had no significant bearing on the case.
Herron also found there was no case to answer against Scappaticci for perjury and that the PPS’s decision not to prosecute him in 2007 “had been correct, or, at the very least, a decision that could reasonably have been taken on the evidence that was available at that time.”
He also found there was ”no evidence of any bad faith or impropriety” on the part of the PPS lawyer who had handled the 2007 perjury investigation, a decision with which Kenova agreed. They emphasised the lawyer had been entirely dependent on the candour of MI5.
However, Kenova profoundly objected to Herron’s decision that Scappaticci should not have been prosecuted for perjury.
Like Kenova, Herron had also taken advice from his own independent counsel, David Perry KC. It therefore appears that both Perry and Laidlaw – both highly accomplished criminal lawyers - were fundamentally at odds.
Herron has explained that NCND has prevented him from elaborating about his reasons for not prosecuting Scappaticci beyond those he gave in his press release. Kenova say this was on instructions from “government lawyers” who claimed this would damage national security.
The client of those “government lawyers” is of course MI5 who so far appear to have also succeeded in persuading the Labour government to retain the strict application of NCND, even to the extent of still refusing to neither confirm nor deny that Freddie Scappaticci is Stakeknife.
I understand that at one stage, MI5 even objected to Kenova publishing any details about the perjury case in its interim report published last year.
Herron also rejected Kenova’s evidence submitted in 17 prosecution files relating to 12 military intelligence personnel and 15 of Scappaticci’s IRA associates allegedly involved in the execution and abduction of agents.
Kenova says that their evidence in ten prosecution files showing Scappaticci’s own involvement in 14 murders and 15 abductions was “strong and compelling”.
Scappaticci died in March 2023. Whether he would have been charged with murder and other offences had he lived, we’ll never know. Due to what Boutcher describes as the “glacially slow” PPS, Kenova’s evidence against him was still being considered when he died.
Neither Boutcher, nor Sir Iain Livingstone, former head of Police Scotland who replaced Boutcher as head of Kenova in 2023 when he became PSNI Chief Constable, have minced their words over the PPS’s decision not to prosecute a single one of the 32 individuals accused in Kenova’s 28 files covering 50,000 pages of submitted evidence.
Both police chiefs have argued that in England and Wales and Scotland, there’s a more collaborative approach between the police and prosecutors, with independent counsel engaged from the outset to address evidential gaps. In Belfast it’s more “standoffish” says a senior Belfast barrister: “The approach is: ‘You, the Police do your job; we the Prosecutor will do ours.’ It’s a bit old fashioned.” Or as Livingstone puts it, there’s a more “siloed” process in Belfast.
Boutcher has also complained that the PPS takes a narrower view on the admissibility of hearsay evidence.
Might these differences explain why Northern Ireland has a lower charge rate for crime than in England and Wales?
Might they also explain why in 2007- despite another leading London criminal KC having recommended prosecutions of former FRU handlers following the investigation by Stevens into how they ran agent Brian Nelson, the PPS in Belfast also rejected this.
Between them Kenova and Stevens have cost tens of millions and spanned a decade. And yet, so far as the PPS is concerned, they turned up nothing meriting the prosecution of a single member of the intelligence services, despite the government acknowledging in 2012 that there had been a “wilful and abject failure by successive Governments” to ensure agents operated within the law.
We are nonetheless invited to believe that highly experienced detectives under Boutcher, Livingstone and Stevens who between them successfully prosecuted organised criminal gangs in Britain and Al Qaeda terrorists, somehow failed when it came to investigating the undercover war in Northern Ireland.
Stakeknife still not named officially
Not only did Scappaticci escape prosecution for his alleged role in 29 murders and abductions, but as I reported yesterday, the government has also still not lifted the ban on Kenova officially identifying him as the agent Stakeknife.
Boutcher and Livingstone regard the government as having a positive duty to lift the ban because he has become so notorious.
“We massively support the doctrine of NCND” says Livingstone. “The issue is its application” particularly in Northern Ireland where, he says ”it seems to have been applied in too broad a manner”.
The question is: why is the state wielding a heavier hand in this part of the UK than elsewhere?
Cynics observe that MI5’s “implacable” NCND dogma has as much to do with preventing further national embarrassment as it does with protecting national security.
It is certainly true that the legacy narrative has been dominated by a quarter of a century of drip-drip disclosures about the state and its undercover war in which hundreds of agents penetrated both Republican and Loyalist terrorist groups.
The result, according to Boutcher, was “very serious criminal offences including murder” being neither prevented nor investigated.
Inevitably this has led to the legacy spotlight being trained much more on the role of the state than the IRA whose leaders have sought to spin the yarn that it was the British state that was murderous.
Those of us who lived and worked in Belfast through the 70s and 80s know the comparison is as risible as it is offensive.
And when it comes to the IRA’s contribution today to truth and reconciliation, corporate platitudes from the surviving leadership don’t cut it either.
What is true is that for all MI5’s rigid application of NCND and other cover ups by British governments, the state has nonetheless been vastly more accountable for its actions than the IRA – as, of course, it should be for all the reasons most of us understand.
But the state still has a way to go and now finds itself up against a free-thinking chief constable, unencumbered by securocratic baggage and firmly on the side of more disclosure.
The alternative, as Boutcher puts it, means the legacy can “being kicked yet further down the road and Northern Ireland never really properly moving forward.”
For a chief of police to be so publicly squaring up to a resistant security and intelligence establishment is unprecedented. And judging by a series of recent high court decisions in favour of more disclosure, he would appear to have the wind behind him.
