Protecting Britain’s Deep State - the Courts, Article 2 and Scappaticci
Irish News investigates role of Britain’s Deep State in first of two part series
PART ONE
John Ware, Irish News, March 24th, 2025
For decades there have been suspicions that the Northern Ireland justice system and the ‘neither confirm nor deny’ policy was being used to protect informers and hide embarrassing secrets for the British intelligence services in Troubles cases. It can now be revealed how this worked in practice during one of the most high-profile cases in the 30-year conflict.
In a two-part investigation, reporter John Ware sets out how Freddie Scappaticci manipulated the courts in an attempt to hide his role as the agent Stakeknife, in a case which drew in MI5, the attorney general, the NIO, the Ministry of Defence and two lord chief justices
Freddie Scappaticci tried everything to maintain that he wasn’t the British agent Stakeknife
FOR over 20 years, the fact that Freddie Scappaticci was a double agent has been so well known that even the dogs in Belfast’s streets have known it.
The IRA leadership has known it for even longer – since the early 1990s, in fact.
The only group who still refuse to acknowledge that Scappaticci was the agent known as Stakeknife is the British government.
Dogged Denials
On MI5’s advice, ministers, government officials, police officers, and the public prosecution service – all are doggedly obliged to neither confirm nor deny the link, even though Scappaticci has been dead these past two years.
‘NCND’ – as it’s known – is a long-standing government mechanism to protect sensitive intelligence. However, when NCND is applied so rigidly – as in the Stakeknife case – it vividly illustrates the chief constable’s description as an “implacable dogma or mantra with the qualities of a stone wall”.
Jon Boutcher says it’s time NCND was no longer used routinely to “obscure wrongdoing by the security forces or serious criminality by agents”. Yet MI5 still cites NCND to justify their refusal to release Kenova’s bespoke reports to families about Scappaticci’s role in the murder of their relatives.
They argue that making exceptions to NCND – especially over the identity of agents – poses a longterm threat to national security by discouraging agent recruitment through fear that their double life might one day be exposed.
Exceptions
Then again, there have been notable exceptions to the NCND rule – when the authorities have considered it expedient. For example:
• In 1987 the Thatcher government denied that MI5 conspired against prime minister Harold Wilson.
• In 1993, responding to admissions by Declan ‘Beano’ Casey of his role in 14 IRA murders, six of them carried out while working for the police, the then RUC chief constable Hugh Annesley acknowledged that he was an agent.
• In 2006 the Police Ombudsman said murdered mother-of-10 Jean McConville was not recorded as having been an agent at any time.
• In 2008 the former head of MI6 told the High Court inquest into the deaths of Princess Diana and Dodi Fayed that MI6 was not involved in their deaths.
• In several inquests during the conflict, RUC officers stated that the victim hadn’t been an agent or informer.
Protecting Stakeknife
Yet on Scappaticci MI5 has obsessively held the NCND line to this day. Now, for the first time, The Irish News can reveal the exceptional lengths to which MI5 and government law officers went to enforce this since Stakeknife’s cover was blown. The story begins after newspapers, including this one, named Scappaticci as Stakeknife in May 2003.
Exfiltrated to Britain for 36 hours by Special Branch and MI5, he defiantly returned to Belfast – determined to fool the world that he wasn’t Stakeknife. Having declined MI5’s offer of resettlement, Scappaticci told them he intended to continue living in Belfast with his family. The soccer-mad spy even asked MI5 if they could get him a ticket to the Champions League.
‘Scap’, as he was known, was supremely confident he could bluff his way out of the same lethal fate suffered by his victims – despite the Northern Ireland minister of state Jane Kennedy refusing in parliament to confirm or deny that he was Stakeknife. He told MI5 he planned to seek a judicial review of the ambiguity in Kennedy’s stand. He calculated he could use the courts to convince the IRA and the wider public that he was categorically not Stakeknife.
What followed was what a former senior government lawyer with knowledge of the events has described as an “elaborate legal charade” by Scappaticci. A second former government lawyer told me Scappaticci appears to have been allowed to use the courts for what the government and the judiciary knew was his sham application for judicial review “in strict due process terms”. It ended up with Scappaticci being investigated 14 years later by Operation Kenova for perjury and for perverting the course of justice. In October 2020 the PPS in Belfast ruled there was insufficient evidence to prosecute him on either count.
Scappaticci’s minders
The key players in Scappaticci’s “elaborate charade” were MI5, the then attorney general Lord Goldsmith, Treasury counsel, the Northern Ireland Office, the Ministry of Defence and two lord chief justices.
A third ex-government appointed lawyer experienced in dealing with intelligence matters said the Blair government was “doing its best to persuade the senior judiciary to deliver a pre-determined ruling” to protect a rogue agent by using NCND.
He said the government were “in a mindset” that Stakeknife had saved more lives than he had cost.
As we now know, Operation Kenova found the opposite. Claims that he had saved ‘countless’ or ‘hundreds’ of lives – were “inherently implausible”, concluded Kenova’s interim report.
All three ex-government lawyers agree that by acting so closely in concert with the judiciary, the ‘separation of powers’ doctrine requiring the judiciary to act entirely independent of the executive came close to being compromised. “They were sailing close to the wind,” one of the lawyers said.
FOR his judicial review, Scappaticci instructed Belfast lawyer Michael Flanigan to demand the government deny he was Stakeknife on the grounds that Kennedy’s refusal to do so was putting his life at risk from the IRA.
Scappaticci and Article 2
He argued that the government had a duty under Article 2 of the Human Rights Act to make an exception to its NCND policy.
On May 21 2003, in the presence of another solicitor, Scappaticci falsely swore on oath that he was not a security force agent, whether known as Stakeknife or by any other name. In doing so, he flatly ignored MI5’s earlier warning not to commit perjury.
Not only had Scappaticci lied on oath, I understand MI5’s then director for Northern Ireland terrorism, Andrew Parker (later to become director general) assessed there was, in fact, no immediate risk to his life.
Furthermore, MI5 and government law officers knew that winning his judicial review was the very last thing that Scappaticci wanted because ministers would then have been under a court order to state truthfully his status – which was that he was indeed Stakeknife.
Scappaticci openly admitted to MI5 that he never expected to win but was exploiting the court process purely to convince the wider public that he hadn’t been a “tout”.
He told MI5 he was determined to continue living in Belfast for as long as possible and that seeking a judicial review of the government’s refusal to comment on his status was what an innocent man would be expected to do.
To MI5’s alarm, however, by mid-June 2003 it looked as if Scappaticci might very well win – undermining the NCND policy and the protection that it had traditionally afforded all governments against answering unwelcome intelligence questions.
In granting Scappaticci leave to bring his judicial review of NCND, Mr Justice Kerr said he had “raised an arguable case that it is reasonable to require the minister to make the statement that he seeks”.
As a consequence, Philip Sales, the government ‘Treasury Devil’ – the title given to the hot-shot barrister chosen to advise the crown on key cases – told MI5 that Scappaticci might well win if the judge at the full hearing assumed he was not Stakeknife. Anxious officials observed that seemed to be exactly what Mr Justice Kerr had assumed.
At a meeting in July 2003 of MI5, Sales, officials from the Ministry of Defence, the attorney general’s office and the NIO, it was agreed Mr Justice Kerr’s favourable comments did not bode well for the full hearing scheduled before another judge, Mr Justice Sheil.
The government, however, appear to have been determined to protect Stakeknife and to preserve NCND policy.
I understand that Sales advised that the court should be put fully in the picture: that the applicant in the case, Freddie Scappaticci, was, in fact, Stakeknife, contrary to his perjured affidavit. Attorney general Lord Goldsmith agreed with Sales’s advice and said the lord chief justice of Northern Ireland, the late Sir Robert Carswell, should also be informed.
Former lord chief justice of Northern Ireland, Sir Robert Carswell who died in 2023
In other words, contrary to the victory Scappaticci’s affidavit sought, Carswell should be told he did not want the court to order ministers to depart from their strict NCND policy because that risked confirming him as the agent Stakeknife.
As government lawyers, both Goldsmith and Sales will no doubt have been concerned to ensure the court was not misled by Scappaticci and to be clear, there is no suggestion that either of them acted unlawfully. Of course, it’s also true that giving the judiciary the full picture served the government’s purpose.
It was decided that a Public Interest Immunity certificate would be the legal instrument by which Sales would put the lord chief justice in the picture. I am told that MI5 even consulted Scappaticci and got his approval for the government’s approach to this acute legal and constitutional dilemma the rogue agent had forced upon them.
Legal Charade
In effect, the respondent (the crown) was co-operating with the applicant (Scappaticci) to achieve an outcome they both wanted but which, to the wider public, the applicant vehemently opposed.
The PII certificate was signed by the Northern Ireland Minister Jane Kennedy. A fundamental requirement of a PII certificate is that it should provide the judge with the fullest possible picture. “A public interest immunity certificate mustn’t be misleading in any way”, a former prosecutor told me.
I understand, however, that the certificate Kennedy was asked to sign was misleading. I am told it stated only that Scappaticci had provided “life-saving intelligence” but made no reference to the fact that he was also under investigation by the Metropolitan Police Commissioner Sir John Stevens for his involvement in multiple executions and abductions of fellow British agents.
Information included in a PII certificate for the minister’s signature would normally be provided by MI5 and therefore Kennedy was entirely reliant on their candour. There is no suggestion she was party to a deception. MI5, however, had known since 2002 that Scappaticci was suspected by Stevens of having participated in executions. The Attorney General’s Office is also said to have been informed of the position by the PPS in Belfast.
I understand the first approach to Lord Chief Justice Carswell for permission for Sales to have a secret or ‘in-camera’ audience was made by the Northern Ireland Office – and rebuffed by Carswell’s office who questioned the propriety of this approach.
I also understand that Sales acknowledged the circumstances leading to his PII application were “exceptional”. Today as Lord Sales, he sits as a justice of the Supreme Court. “Philip would not have been in his comfort zone,” observed a senior barrister who knows him. His office told me it that because of his position today, it would be inappropriate to comment.
Spurned by Carswell’s office, Lord Goldsmith then approached the England and Wales lord chief justice, Lord Woolf. He appears to have succeeded in persuading his Northern Ireland counterpart to see Sales.
On August 4 2003 Sales flew to Belfast, meeting Carswell at his home close to the Stormont Estate in east Belfast where in 1984 the IRA had tried to kill him by putting a bomb under his car – the same day he was due to be sworn in as a High Court judge.
There Sales presented Carswell with the PII certificate seeking his approval to not disclose to any party to the proceedings that Scappaticci was Stakeknife – neither to the crown’s own counsel, Declan Morgan QC, nor to Scappaticci’s solicitor Michael Flanigan.
Although Mr Justice Sheil was scheduled to hear Scappaticci’s challenge to NCND, following Sales’s visit, Carswell decided to take the case himself.
NCND policy preserved
Neither the public, nor the press, nor even the lawyers for both parties knew what had been going on behind the scenes. Only two people in the court did know: the lord chief justice (Carswell) and the applicant (Scappaticci). Both men knew Scappaticci had perjured himself; and both also knew he didn’t remotely want the verdict he publicly sought from Carswell.
On August 18 Carswell’s judgment was released. As expected, the lord chief rejected Scappaticci’s bogus demand and supported the government’s case for maintaining the strict NCND policy.
Carswell also knew that Scappaticci’s sham case was being funded by the public purse despite the fact that he had received substantial payments from the MoD.
He presumably also knew that besides preserving the NCND policy, his “elaborate legal charade” had also facilitated Freddie’s Scappaticci’s goal of continuing to live in Belfast rather than accept MI5’s offer of resettlement.
Following the verdict, Scappaticci continued his charade by having the chutzpah to appeal, despite having promised MI5 that when, as expected, he lost, he would not do this.
I sent the details of my investigation to the key government officials and agencies involved in Scappaticci’s sham judicial review, including MI5. Speaking on behalf of all of them, a government spokesperson said: “The work of Operation Kenova is ongoing and it would therefore be inappropriate to comment further at this time.”
Part two of this special report will be published tomorrow.
Remains in Graveyard not Joe Lynskey’s, family told
Niamh Campbell, Belfast Telegraph, March 24th, 2024
Human remains recovered from a burial plot in a Co Monaghan graveyard last November are not those of 'Disappeared' republican Joe Lynskey, officials have confirmed.
Mr Lynskey, a former Cistercian monk from the Beechmount area of west Belfast, was abducted and murdered by the IRA in 1972.
Late last year, 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 Joe.
However, the Independent Commission for the Location of Victims Remains (ICLVR) has now announced that they are not.
“In an effort to locate the remains of Joe Lynskey [...] human remains were exhumed from a grave in Annyalla Cemetery, Co Monaghan, on November 26, 2024,” a statement from the ICLVR reads.
“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 now 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.”
Comiskey family thanked
The ICLVR further thanked the family of Mr Comiskey, who underwent “a distressing experience” upon having the grave opened to facilitate the exhumation.
The statement added: “We are grateful for their co-operation and support at all stages of the process.
“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.”
Speaking to the Belfast Telegraph last month, Mr Lynskey's niece Maria said that her uncle deserves a proper burial, adding that she hoped the wait to find his body would now be over.
Lynskey’s niece appeals for information
Mr Lynskey disappeared in 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.
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.
Mr Lynskey was murdered after ordering the unsanctioned shooting of another IRA member with whose wife he was having an affair.
Anyone with information on the outstanding Disappeared cases are urged to contact the ICLVR on +353 1 602 8655 or secretary@iclvr.ie.
ICLVR ‘will do everything in our power to recover Joe Lynskey remains - ICLVR
By John Breslin, Irish News, March 24, 2025
THE ICLVR DID NOT BECOME AWARE THAT JOE LYNSKEY WAS ONE OF DISAPPEARED UNTIL 2010
DNA testing of a body exhumed from a grave in Co Monaghan has revealed the remains are not those of Joe Lynskey.
The exhumation from the family grave of the former Bishop of Ferns Brendan Comiskey was carried out last November.
In a statement on Sunday, The Independent Commission for the Location of Victims Remains (ICLVR) said the results reveal the remains are not those of Mr Lynskey, any of the other disappeared or among the family of Bishop Comiskey.
The 40-year-old former monk, who later joined the IRA, was abducted, murdered and secretly buried in 1972.
The exhumation was carried out at Annyalla Cemetery in Co Monaghan
It is believed his murder was linked to his ordering the shooting of another IRA member in a domestic-related dispute.
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 now also eliminated them as being those of Joe Lynskey or any of the Disappeared.”
Lead investigator Jon Hill was speaking at Annyalla cemetery in Co Monaghan
Human remains were exhumed after the commission received information relating to “suspicious historic activity” during the 1970s at the grave in Annyalla cemetery.
“All the interested parties including the Lynskey family have been informed,” the ICLVR said on Sunday.
“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.
“We are also conscious that this was a distressing experience for the family whose grave was opened to facilitate the exhumation.
“We are grateful for their co-operation and support at all stages of the process.”
The commission added it will continue “to do everything in its power to locate and recover the remains of all of the outstanding Disappeared cases”.
Mr Lynskey was only named as one of the Disappeared in 2010 following Irish News reporting.
The commission issued a new appeal for anyone with information relating to Mr Lynskey and the unrecovered disappeared, Columba McVeigh, Robert Nairac or Seamus Maguire, to make contact in the “strictest confidence”.
The commission can be contacted +353 1 602 8655 or Secretary@iclvr.ie or ICLVR PO Box 10827 Dublin, Ireland.
Nairac's killers asked about his body following mother's letter
Sam McBride, Belfast Telegraph, March 24th, 2024
Desperate letters which Robert Nairac's mother wrote to Government ministers in the hope of finding her son's body led to two of those who murdered him being privately asked to help, a declassified file has revealed.
The Grenadier Guards officer was abducted in South Armagh and murdered across the border in 1977 in one of the most infamous and most mysterious Troubles murders.
Captain Nairac had been operating in a deeply secretive role, liaising between RUC Special Branch and the SAS. But he was also handling informers and mixing with the South Armagh community in plain clothes under a false name and with a Belfast accent.
His abduction from the Three Steps Inn in Dromintee appears to have been spontaneous and involved IRA sympathisers rather than members. The man who shot him, Liam Townson, however, was an IRA member, and the disappearance of his body was in line with one of the IRA's most grotesque war crimes.
In June 1987 — a decade after Nairac's murder — his mother Barbara wrote to Home Secretary Douglas Hurd.
Mother’s letter in Kew
In a handwritten letter, contained within a file discovered by the Belfast Telegraph in The National Archives in Kew, she said: “It seems to me incredible that nothing further is known of what happened to him and his body has never been found.
“We are now 77 and the terrible experiences we have had affect us now more than ever and speculation never ceases.
“Is there any authority or person to whom we could write? Previous letters to Secretaries of State for Northern Ireland were no help.
“We have always emphasised that we understand the necessity for security and I think we have shown ourselves to be responsible and trustworthy.”
In response, an NIO official collated responses from the security forces with which it worked. MI5 said it had no information.
The RUC said Nairac was murdered on the Saturday night and Liam Townson — who'd been convicted for the murder — was the gunman, with his body left in a field in Ravensdale Forest.
The RUC also said: “Those involved met in Border Inn next day and two or three were ordered to move body.”
The RUC said it believed the body “was moved a relatively short time after his death”.
The handwritten note about the RUC's knowledge also states that “the ones involved McCormick, [an unclear word ending in 'lly'] and Maguire now in USA or [unclear].”
The unclear name may be that of Kevin Crilly, who in 2011 was prosecuted for involvement in the murder but was cleared by Belfast High Court.
RUC had names
The Home Office said the RUC “apparently know (but we could not tell Mrs Nairac) the names of three people who moved his body shortly after he was killed. They are now thought to be in Australia or the US but their whereabouts are not known for certain”.
NIO official Chris Macabe said they were asking the Irish Government “if someone, perhaps a prison chaplain, might sound out Townson to see if, after the passage of 10 years, he is prepared to do the humanitarian thing and tell what happened to Captain Nariac's body”.
The NIO arranged for the same questions to be asked of Gerard Fearon, the one person convicted of Nairac's murder who was in a Northern Irish Prison. He was approached in the Maze and a handwritten note said he cooperated “but has no knowledge”. The assistant governor of the Maze said he thought Fearon was telling the truth.
The Irish Government said the Governor of Portlaoise Prison believed it would be “pointless” to approach Townson, partly because he left after murdering Nairac and partly because he “remains unrepentant for his crime and is a staunch republican”.
An NIO official said that the Irish Government had said Fr Denis Faul had recently received a similar enquiry from one of Nairac's sisters and “he is in a quandary how to answer because he believes that the body was taken to a meat processing factory (animal feeds) near Ravensdale and disposed of in the machinery.”
However, a note from ES Dalzell in the NIO's Law and Order Division said that “the RUC do not go along with Father Faul's version of the whereabouts of Capt Nairac's body”.
Mystery remains
Writing in October 1987, an NIO official said “it is unlikely that the mystery will ever be solved”. He said there was an implication in Mrs Nairac's letter that information on the location of the body was being withheld for security reasons, something he said was not the case.
The Secretary of State was unhappy at the Irish refusal to even ask Townson about the issue — and a second request was also turned down. Eventually, in December 1987, he was asked about the issue and said he didn't know where Nairac's body was, something the Irish prison authorities believed to be genuine.
Nairac's mother wrote to Secretary of State Tom King in January 1988 to thank him for his efforts to help the family. She added: “May I say how much we admire your perseverance and patience in trying to solve the terrible problem of Northern Ireland.”
In May 1991, Mrs Nairac again wrote to the Secretary of State but an NIO official advised that “there is little else that can be done to relieve Mrs Nairac's understandable continuing distress”.
Barbara Nairac died in 1999. Her son's remains have never been found.
