Northern Ireland Affairs Committee

Oral evidence: Administrative scheme for ‘on-the-runs’, HC 177
Morning Session, Tuesday 10 June 2014

Ordered by the House of Commons to be published on 10 June 2014.

Members present: Mr Laurence Robertson (Chair), Oliver Colvile, Lady Hermon, Kate Hoey, Naomi Long, Dr Alasdair McDonnell, Nigel Mills, Ian Paisley, David Simpson.

Questions 1186-1495

Witness: David Ford MLA, Minister of Justice, gave evidence.

Q1186   Chair: Good morning, Minister. Thank you very much for joining us. I don’t think there is any need to go through the long introduction—you know what we are doing—but thank you very much for coming to see us at the opening of our second day of taking evidence in Belfast. We have obviously discussed this when we have met individually, but it would be helpful for you to tell us in public session what you knew about the on-the-runs administrative scheme and when you knew it, and perhaps give us your background to it.

David Ford: Thank you very much, Chair, for this invitation to discuss the on-the-runs scheme. The Committee will be aware that I have given evidence on the issue to the Assembly Justice Committee. I have also given evidence to Lady Justice Hallett and I welcome this opportunity to formally put my position on record to the Select Committee. My opening statement will be brief.

As I have previously stated to a number of members of the Committee informally, I first of all want to put on record that my Department has had no involvement in the on-the-runs scheme. Indeed, prior to the Downey judgment becoming public, I was unaware that such a scheme was in operation. I first became aware of the scheme when I received a telephone call from an NIO official on Friday 21 February to brief me about the Downey judgment, before it became public on Tuesday 25 February.

Oliver Colvile: Sorry to interrupt, but that was this year?

David Ford: This year.

The Secretary of State implied that it was a devolved matter on 26 February in some of her early public comments about the scheme. Knowing that my Department had no role, I immediately asked to meet the Secretary of State. Without wanting to go into the details of our discussions, suffice it to say we had a robust exchange and she subsequently apologised for wrongly implying that my Department was responsible for the scheme. I also sought my own legal advice on the scheme.

The Police Service of Northern Ireland and the Public Prosecution Service have been involved in the scheme even as it continued to operate following the devolution of policing and justice powers to the Northern Ireland Assembly. However, you will appreciate that the PSNI has operational independence and the PPS is not accountable to me. The PSNI was already providing some information to the Policing Board and this Committee has already asked many pertinent questions of the last three Chief Constables.

I am now responsible for the Northern Ireland Prison Service, which referred 10 cases to the scheme during the period prior to devolution, when the Prison Service was the responsibility of the NIO. In line with the ministerial code and the long-standing conventions preventing me from asking officials about the papers or information available to a previous Minister, I have asked the NIO for relevant information. I await a response.

The Secretary of State made the welcome announcement on 7 March that the scheme had ended, but I am conscious that there are many issues to be resolved and many questions unanswered, not least for victims and their families. I am as keen as anyone to see those issues addressed. The findings of this Committee, along with the various other reviews, will assist in doing so.

Since becoming Minister I have been working to reform our justice system and to build confidence in it among all sections of the community. We have been making good progress but controversies such as this highlight the challenge we face in trying to deliver an effective justice system now and into the future when also faced with the pressing need to deal with the legacy of our past. That is why we need, through all-party talks, to get an effective and urgent solution that includes but also goes beyond justice.

As my Department has had no involvement with the on-the-runs scheme, I cannot provide details such as numbers involved or views on individual names and cases, but I hope to assist the Committee in any way I can. I thank you for the opportunity to be here and I am happy to take questions.

Q1187   Chair: Thank you very much. When you received the phone call on 21 February, you were—well, “surprised” is probably a very gentle word to use.

David Ford: I think that is an accurate, gentle word to use, yes.

Q1188   Chair: What was your response?

David Ford: My response was surprise that the scheme was in existence, and in existence until very recent time, and concern about the potential implications, as I highlighted, for the difficulties of providing confidence in the justice system.

Q1189   Chair: You would have been even more surprised that in May 2010 you did not receive the phone call to say, “There is a scheme running. It is now your responsibility.”?

David Ford: This is part of the difficulty that at different times different comments have been passed from the NIO—that it was devolved, and then admitting that it wasn’t devolved. There was certainly never any formal transfer of such responsibilities from the NIO to the Department of Justice.

Q1190   Chair: Is that because technically there wasn’t such a scheme? It was not there in legislation and very many people say they did not know anything about it, including you, yet you are in a senior position. Was it not formally devolved because there was technically nothing to devolve?

David Ford: I think you had better ask those who did not devolve it than those to whom it was not devolved. For example, I don’t know whether a view might have been taken that national security issues were engaged and therefore it was the sort of justice issue which has never been devolved, in that issues relating to national security remain the responsibility of the NIO. It is a complex mix of different issues, and not having the facts, I am not in a position to say why I think it wasn’t devolved.

Q1191   Chair: Was the national security card played at the time when you questioned why it was not devolved? Was that what was said to you in response?

David Ford: No, it wasn’t played at the time although I could see that some of the issues involved would certainly impact on national security matters.

Q1192   Chair: But there is a question about whether national security covers prosecutions. Our advice is that it is doubtful that it does.

David Ford: In so far as the Public Prosecution Service is an entirely independent non-departmental body, it is difficult for me to say where its responsibilities are devolved and where they are non-devolved and relating to national security matters.

Chair: Thank you for that. We will widen it to the rest of the Committee.

Q1193   David Simpson: David, it is good to see you again. As you know, yesterday we had Nick Perry—I think you are familiar with the individual—from your Department[1].

David Ford: I am certainly familiar with my permanent secretary, yes.

David Simpson: We had him giving evidence to us yesterday. Whenever you gave evidence to the Justice Committee, you told it, in your words, that you “made a deliberate decision to seek my own legal advice without any form of request going through Mr Perry” on the OTRs. Why did you choose not to involve him on this occasion and who did you seek legal advice from?

David Ford: When you ask why did I choose not to involve him on this occasion, it implies that if I was seeking legal advice I would generally go through him, which is not necessarily the case. On some occasions in discussion with more junior officials, I have decided that legal advice was appropriate; on other occasions I might decide it entirely myself.

Q1194   David Simpson: You did not make a formal request through him.

David Ford: I did not make a formal request through him. Frequently, if legal advice is requested it is a matter of asking my private secretary to ring the departmental solicitor to ask for a quick conversation. On this specific occasion there was the issue that, given Nick Perry’s previous role within the NIO, there might have been seen to be a conflict of interest between his role and my role—

Q1195   David Simpson: It was not a case—sorry for cutting across you—of sour grapes because he did not inform you about the scheme in the first place?

David Ford: Absolutely not. Given that he had a previous role in the NIO, there might have been perceived to be a difference in our role, and therefore on this occasion it would not have been appropriate to involve him in discussions that I was seeking legal advice.

Q1196   David Simpson: For the legal advice, who did you ask?

David Ford: I sought legal advice through the departmental solicitor’s office.

Q1197   David Simpson: You have received that advice?

David Ford: I have received advice, yes.

Q1198   David Simpson: Do you intend to make it public to this Committee?

David Ford: In line with usual conventions, I do not intend to make it public to anybody.

David Simpson: Okay. I will move on and let someone else come in and I’ll come back later.

Q1199   Chair: That does provoke the question, though, is your view now different to what it might have been when you first found out about the scheme?

David Ford: In what particular respect?

Q1200   Chair: In terms of whether it should have been devolved in May 2010 when you took office.

David Ford: It is almost a case of it being slightly irrelevant. Had it been devolved, then I can see no circumstances in which the Department of Justice under my leadership would have continued with such a scheme. I have made my views fairly well known as a party politician to the Prime Minister and to various Secretaries of State about an appropriate way of dealing with the OTRs, and this scheme was not in agreement with the views that I had expressed on what would be appropriate.

Q1201   Chair: It must be relevant because you took the legal advice. You must have seen a reason to take that legal advice. What was that reason?

David Ford: I sought legal advice around a range of issues involving it.

Q1202   Chair: Could you tell us what those were?

David Ford: I think I have probably said as much as I should say in the context of the confidentiality of legal advice.

Q1203   Kate Hoey: But Minister, this is public money being spent on legal advice. You have got all this legal advice now. What is the point of it if it is not going to influence you in some way or other?

David Ford: There is no particular point in taking it if it does not influence potential future behaviour, but it is also clearly the case that information that may become available through Lady Justice Hallett’s inquiry, through this Committee’s inquiry and through other work being done by the Policing Board and the Assembly Justice Committee, may also become relevant to what might become appropriate future actions by the Department.

Q1204   Lady Hermon: Did you make the legal advice available to Lady Justice Hallett?

David Ford: She didn’t request it and I didn’t offer it. I am not sure that a Lady Justice of Appeal requires my solicitor’s advice.

Q1205   Lady Hermon: I think what we’re trying to get an answer to, Minister, is: was the OTR scheme, after the devolution of policing and justice, a reserved matter? Was it legitimate for the Northern Ireland Office and British Government Ministers to retain that power after devolution of justice and policing?

David Ford: No. I agree that that is an entirely legitimate question, but there may well be differing legal opinions on it. In that sense, Lady Justice Hallett may produce one of the more interesting opinions on the precise legality of the scheme.

Q1206   Lady Hermon: When are you expecting her to deliver her report?

David Ford: The formal statement was the end of this month, and I have heard nothing to suggest that it will not be completed by the end of this month.

Lady Hermon: So you are confident that it will be completed by the end of this month?

David Ford: It is some weeks since I last met her, so I am only going on the statement at that time. The expectation was that matters would be completed for the end of June.

Q1207   David Simpson: A small question, going back to your permanent secretary again. Do you believe that Nick Perry acted properly in not disclosing the scheme to you as Justice Minister?

David Ford: I believe Nick Perry acted entirely appropriately in differentiating the role he had working for other Ministers of another party—indeed, of other parties—in another Department. When he transferred to the Department of Justice, he had his duty of confidentiality to them, which applies in general terms. To put it another way, if officials leave the Department of Justice to go to work for other Departments, I would not wish or expect them to be telling other Ministers from other parties about the work they had done for me.

Q1208   David Simpson: Can I finish with one small point—a separate issue from Nicky Perry? I will leave Nicky Perry alone for a moment.

Regarding your evidence to the Committee, you mentioned that there were five cases being dealt with—a senior NIO official had told you that there were five cases being dealt with by the Government and that they only emerged in late 2012. Do you have an update on those cases or where they stand at the moment?

David Ford: I have no update on those cases at all.

Q1209   Chair: During the period from taking office—we have been told that the on-the-runs issue was an anomaly and that it was crucial to the peace process—you must have had some discussions with other politicians about this so-called anomaly. The whole issue cannot just have been kept from you. The scheme was, but you must have discussed the whole issue, presumably.

David Ford: The issue was discussed but it appeared to have been resolved at the point when a former Secretary of State told the House of Commons that legislation was not proceeding. I suppose naively, I presumed it meant nothing was proceeding when the Secretary of State told the House of Commons that nothing was proceeding.

Lady Hermon: It is very good of you to come so early in the morning to give evidence.

David Ford: It is not early in Stormont.

Q1210   Lady Hermon: It is not early in Stormont. Well, it is very good of you to come. I have a number of questions.

Following on from the remarks you have made, and putting on your Alliance party leader’s hat for a moment rather than the ministerial hat, I know from interviews in the past 24 hours that the leaders of the main five parties in the Executive are going to use this new window of opportunity to try to discuss making progress on the Haass talks. Is it a fact that, during the Haass negotiations, there were six months when an enormous amount of time was spent by representatives from your party and other parties. Was the OTR issue discussed? Was time given, during the Haass talks, to the OTR issue?

David Ford: The leader of the Alliance party is tempted to refer you to the deputy leader of the Alliance party, who had a larger involvement in the Haass talks that he did, except at the very end. Certainly, during the time that I was involved—specifically, in late December—there was no significant discussion at any time that I was in the room around the OTR issue.

Q1211   Lady Hermon: Has your deputy leader indicated to you that, on other occasions when she was present, the OTR issue was discussed?

David Ford: Not that I recall.

Naomi Long: Chair, rather than be circuitous about it, I can answer the question directly. No, it was not raised. It is that simple. It was never brought up as part of the discussion at any stage, either in bilaterals or in round tables. It just was not on the agenda. Most people had assumed that because that issue had been parked, back when the legislation fell, nothing was happening other than what was happening through the HET. Certainly my working assumption was that as the HET went through their process, they would deal with people who were on the run and cases would be closed, and so it would move on. I think that is what most people assumed, so it was never raised.

Q1212   Lady Hermon: Thank you so much for that. It was very helpful.

Now, back to the Minister—does it surprise you that Richard Haass appears not to have been told about the deal and the scheme to deal with OTRs? He has certainly given evidence to Committees in America to indicate that the only time that he knew about it was after the Downey judgment and press releases. Does is surprise you that the British Government bring over someone of the calibre and status of Richard Haass to spend an enormous amount of time here in Northern Ireland talking about dealing with the past, but conceal from him the existence of the OTR scheme? Does that surprise you?

David Ford: Technically, the British Government did not bring Richard Haass over; the party leaders suggested it and the First Minister and Deputy First Minister formally invited him. I suppose, given the lack of information provided by British Governments of both complexions over the years to anyone, it does not surprise me that they did not tell Richard Haass either.

Q1213   Lady Hermon: I have to agree with that, but it is very disappointing. Could I come back to a couple of comments you made? You made reference to unanswered questions for victims. We had representatives of the Victims and Survivors Forum here yesterday—you may have had an opportunity to hear them. It was very poignant and moving to hear Ann Travers in particular. When those victims suspect that the murderers of their loved ones have in their back pocket or on their mantelpiece an OTR letter, how can we give them confidence and reassurance that that is not the case?

David Ford: I honestly do not know whether it is possible to give victims that reassurance. I certainly know that within the Department of Justice we are doing a lot of work to try to find ways to deal with the past. I have put forward to the five-party meeting papers prepared by my officials on some ways in which we might look at the Haass proposals for dealing with the past, to put something into place, but that is a general issue of providing comfort for victims. On the specific issue you were saying about whether there are OTR letters—

Q1214   Lady Hermon: Yes, the 228 OTR letters. A great number of families who lost loved ones during the troubles now believe that the alleged or suspected murderer of their loved one has an OTR letter. It has been suggested that it would be helpful if reassurance could be given to those families that the alleged or suspected murderer of their loved one did not receive an OTR letter. Is that manageable?

David Ford: It is probably not manageable. As I understand it, the PSNI is currently reviewing the status of those individuals who were issued letters, but there may well be cases in which people are suspected of very serious crimes, including murder, but against whom there is no substantive evidence, as opposed to suspicion, and those people, I presume, may have received a letter saying that they are not currently wanted, even though they are suspected of serious crimes. That is clearly something which will be of concern to victims. I do not see how that can be resolved at this stage.

Q1215   Lady Hermon: Would it be simpler simply to annul all 228 letters? You are the Justice Minister. You must have given it some thought.

David Ford: The question would arise as to what the effect of annulling such letters would be, as well as who could annul them—

Q1216   Lady Hermon: The effect would be that we would not have a repeat of Mr Downey. He was able to rely on the abuse of process argument and he walked free from the Old Bailey.

David Ford: Yes, but, not being a lawyer, I wonder whether issuing a letter and then annulling it might also be regarded as abuse of process, similar to, but not quite the same as, the Downey abuse of process judgment. I leave those issues to lawyers to test in court, but I am not sure that annulling would necessarily succeed in what you are suggesting.

Q1217   Lady Hermon: The second thing that you mentioned in your initial remarks was building confidence in the justice system. How do we rebuild confidence in the justice system after the revelations of the OTR scheme and the secrecy that surrounded that, as well as the secrecy that surrounded the connection and the involvement of the PSNI, the DPP’s office, the Attorney-General’s office and the Northern Ireland Office? How do we rebuild public confidence in the fact that we have an independent judicial system?

David Ford: There are many issues of the past which have produced a lack of confidence or a reduced confidence in the justice system. All I can do at the present time is ensure that the justice system, in so far as the DOJ has control over some of the levers, can ensure that it is working fairly, seen to work fairly and implementing justice for all. I do believe that we can help provide reassurance and confidence in 2014, but I do not know how we can provide the confidence that you are seeking, which we would wish to give people, that the justice system operated entirely properly when the scheme was under way.

Q1218   Lady Hermon: Do you think the fact that the PSNI has already set up the review team, Operation Redfield, will be helpful? I know it will take a bit of time—two to three years. In your opinion, will that help to rebuild confidence that every single one of the 228 OTR cases will be reviewed in detail?

David Ford: I certainly think it will help, but the point I made is that in some cases there may be an assessment that even though there are suspicions, there is no evidence and therefore—I was almost going to say that the letter may have been issued correctly; I mean in contrast to the Downey judgment “correctly” as opposed to my views on the correctness of the scheme. In those circumstances, they may still not be providing confidence to victims in those cases, but hopefully the review will provide some reassurance that at least the process was done properly and that letters were not issued when there was evidence or intelligence, as there clearly was in the case of Mr Downey.

Q1219   Lady Hermon: So, to summarise what you have said, the damage done to the criminal justice system by the revelations of the Downey case and the OTR scheme is long term?

David Ford: I would hope that it is reducing damage, but it is part of the damage of the difficulties of the past. As the devolved Department of Justice in the present, it is very difficult for us to redress the problems of the past.

Q1220   Chair: Minister, you correctly referred to the fact that the police are reviewing the cases of the people who received the letters. If they were to find that actually there are things that they want to talk to them about, what would you then expect to happen to those letters?

David Ford: Given that I am not aware of the content of those letters and I understand that there was different content in different cases, it is very difficult to say exactly how that should happen. Clearly if cases emerged like the case of Mr Downey, who received the letter saying that he wasn’t wanted when he was wanted, then presumably there would have to be a rescinding of that letter. That raises all kind of complex questions of whether the individual concerned happened to be within the UK jurisdiction.

Nigel Mills: Mr Ford, that is the nub of the issue. What do you think is the status of these letters? Do you think they are a general amnesty for any pre-‘98 offence? Do you think they are a meaningless document that only had any relevance on the day it was issued? What do you understand their status to be?

David Ford: As I just said to the Chair, given that I understand that there were a number of variations of the letter and given that I have never seen one of these letters, never mind all 228, I don’t actually know what the formal status is because I do not know the precise contents of the letter or the circumstances in which information was supplied by the police or PPS to the NIO officials who signed off on the letters. You are asking me to second guess in several dark rooms.

Q1221   Oliver Colvile: Have you asked for a copy of the letters?

David Ford: No, I have not.

Oliver Colvile: Why not?

Q1222   Nigel Mills: I struggle here. I can understand what you are saying; the difficulty is that these letters have such a relevance to the justice system for which you are the Minister responsible that I find it a little hard to believe that you haven’t been a bit inquisitive as to what their legal status is and exactly what impact they might have. You are really just saying, “I haven’t seen them and I know nothing.” That does not strike me as very persuasive.

David Ford: But given the different responsibilities and the operational responsibilities of the police and the PPS, which I need to be very careful of straying into, and given that they were issued via the Northern Ireland Office—I have asked questions of the Northern Ireland Office, including questions relating to actions of the Northern Ireland Prison Service, which is now my direct responsibility, and I have not received those answers—I am not quite sure. Even if I were to ask—and I have my doubts as to whether it would be wise at all in my position to ask—given that I have not been told about actions carried out by people who are probably now working directly for me, with the Prison Service being part of the Department of Justice, I doubt whether the Northern Ireland Office would tell me anyway. But the reality is: it was their scheme. They implemented it. They bear responsibility for it morally. You are almost suggesting that I should somehow take over and try to sort out the mess that they have created.

Q1223   Nigel Mills: Perhaps that might be an idea. The letters’ wording suggests you won’t be prosecuted for any pre-1998 offence unless new evidence comes to light or by some other processes. I am trying to understand exactly what that means as a policy. What is new evidence? Is that something that you have tried to look into to see what impact it has?

David Ford: No I haven’t, but I think it is entirely appropriate that this Committee should inquire of the people who were responsible for putting the information together and issuing the letters, not of those of us who had nothing to do with it.

Q1224   Nigel Mills: But we are now in the current situation. In the hypothetical position that some new evidence turns up about one individual with one of these letters, your view would presumably be that if there is sufficient evidence, a prosecution should be commenced, and you would not be putting any pressure on for that not to happen. Surely it is entirely relevant in the sphere of justice policy in Northern Ireland that you understand, as a policy position, in what situations prosecutions can and cannot commence.

David Ford: I neither put pressure that prosecutions should happen nor that prosecutions should not happen—unlike some other politicians in this jurisdiction. I respect the independence of the police and the PPS in the job that they have to do. As a general rule, I believe that if evidence is available relating to serious crimes, the individuals responsible for those crimes should be prosecuted, but I don’t take a view on individual cases, because that would lead into very dangerous waters.

Q1225   Nigel Mills: No, that is why I was asking about the general policy. The legal advice that you took: was that on this issue of what status these letters have and what the implications are, or was it on something else?

David Ford: I fear you are subtly trying to get me where others have tried to lead me in the past, and I am not going there. Sorry.

Q1226   Nigel Mills: I am not trying to ask what your advice was. Perhaps I misunderstood, but it struck me—

David Ford: My advice was sought on the generality of the issues as they related to the Department of Justice.

Q1227   Nigel Mills: So do you now have a view on the generality of the implications of these letters and their status?

David Ford: Again, you are suggesting that I have information on the detail of the letters, but I am now awaiting the outcome of a number of inquiries to see what further is teased out by this Committee’s work, Lady Justice Hallett’s work, the Policing Board, the Justice Committee and the ombudsman, all of which have relevance on significant parts of the scheme that the Department of Justice does not currently have a locus on.

Q1228   Naomi Long: David, can I clarify something in the evidence you have given? When did you make your request for information to the Northern Ireland Office?

David Ford: I cannot tell you exactly when, but it was a very short time after it became public.

Q1229   Naomi Long: What response have you had to date?

David Ford: None.

Q1230   Naomi Long: Have you had an acknowledgment of your request?

David Ford: I suspect the Department probably has an acknowledgment, but no substantive responsive.

Q1231   Naomi Long: No substantive response.

David Ford: Up to this morning, no substantive response was received.

Q1232   Naomi Long: Just to clarify, that also includes the issues in relation to the Prison Service, for which you now do have operational responsibility?

David Ford: Yes. That is one of the key points, but, again, because it was an NIO department at the relevant time, I had to seek the Secretary of State’s information, and that has not been forthcoming.

Q1233   Naomi Long: I want to explore the issue of confidence that others have mentioned. Obviously, this scheme was not devolved. The Secretary of State has now said that that is the case, having erroneously said to start with that it was. However, parts of the devolved structures were engaged in administration of the scheme—not parts for which you have direct operational responsibility, but nevertheless parts of the devolution structures. Are you concerned that that in any way undermines you and your credibility as Justice Minister? Have the NIO, continuing with this, actually put the devolution of justice and the position of Justice Minister in some jeopardy over this issue? 

David Ford: I do not believe it has put the devolution and the position of the Minister in serious jeopardy, but it is an issue that shows how much the past is continuing to impact on the work we’re doing. There have been a number of statements from Government Ministers which have talked about the responsibility of the devolved authorities. I picked up one particular media interview in the immediate aftermath of the Downey judgment where the Deputy Prime Minister referred to the devolved authorities. Now, it was clear, if you looked at the detail of it, that he meant the police and the PPS, but the problem is that, in this building, when you talk about the devolved authorities, people tend to assume that you mean the Assembly, the Department of Justice or the Justice Committee. That is the challenge.

Q1234   Naomi Long: In that context, when you talk about devolution of the policing and justice structures, the assumption that people make is that everything devolved to the Justice Minister. That is not the case. That is very often a public assumption as well as an assumption in this building. Given that context, are you content that, even under the civil service code, Nick Perry could not have been expected to see this as potentially embarrassing to his current Minister, and therefore was under some obligation to inform you of what had been taking place with the NIO at that time?

David Ford: I think you are into the very difficult issue of ongoing matters and how they relate when responsibilities transfer across Departments. Remember that justice being devolved from the NIO is almost a unique example, given that the individual Northern Ireland Departments excluding Justice had continued with a slightly separate status from the NIO as such. It might be perceived that information should have been passed on but I do think there are real issues about individuals who work for one Minister then working for another Minister, having a responsibility of confidentiality to their predecessor.

Q1235   Naomi Long: I appreciate that and I appreciate what the civil service code says about it, but there is an issue about causing embarrassment to your current Minister and that is the one I am trying to explore. Given the context where, even though the parts of the devolved structures that engaged in this process with the NIO were not the parts for which you have direct operational responsibility—at least not during this period—is it not fair to say that this could have been seen as potentially embarrassing to you, and therefore ought to have been considered as something that ought to be shared with you on that basis?

David Ford: Well, it could have been seen as potentially embarrassing. The force with which I have said that this was not a devolved issue—I got the Secretary of State to accept that she erroneously stated it was a devolved issue—has meant that the Department of Justice has remained reasonably distant from this particular issue. It is part of the overall impact on, as I talked to Lady Sylvia about, the issue of confidence in the justice system generally, rather than the specifics of the Department.

Q1236   Naomi Long: We saw that very acutely yesterday in the evidence that was given by David Scott and Ann Travers. Clearly, their confidence in not only the justice system but, I would have to say, the wider process has been shaped quite dramatically by what has happened.

You mentioned the Secretary of State and the NIO. On 20 February, you confirmed that the NIO said that they confirmed that they bore all responsibility for the five cases that were still in the system. To clarify: the Secretary of State had said that the scheme ended in 2012, and that was then corrected to say that actually there were still five cases in the system; and the Secretary of State said that it was devolved, and then corrected that to say that it was not devolved. There seems to be, at best, confusion around this particular issue. Sinn Fein have now claimed that three further cases were settled this year, 2014, which the NIO are denying. Do you trust the NIO and their assurances at this point in time on these matters, or indeed on anything?

David Ford: If you are asking me whether I trust the NIO or Sinn Fein more or less on issues like this, I suppose I would have to say that I would trust the NIO more but, certainly, the fact is that they originally talked about 38 cases at the point of devolution and then—I believe in the House of Commons Chamber, to you—the Secretary of State corrected that to 43. Exactly when the five cases that were referred to were finally dealt with or whether they became some of the three cases is all decidedly unclear to me.

Q1237   Naomi Long: Is that something that you will be seeking clarity on directly from the Secretary of State, now that that evidence has been made public about the three cases that they are claiming were settled in 2014?

David Ford: Well, I think there are further discussions I need to have with the Secretary of State. I suspect the first useful point will be after Lady Justice Hallett’s report emerges, since my expectation is that the Committee will take rather longer considering the political issues rather wider. There will be some interesting conversations to be had when that report comes out.

Q1238   Naomi Long: Do you have confidence in the Northern Ireland Office on these issues?

David Ford: I am not entirely convinced that the Northern Ireland Office has been clear to the people of Northern Ireland, to Members of the Assembly or to the Department of Justice on exactly the scheme that they were running, how they were running it or when it ended. The further, different statement that emerged certainly adds nothing to confidence.

Q1239   Oliver Colvile: Forgive me, but I was under the impression that when Downey actually got arrested in the first place, he said, “I’ve got some letters.” Am I right?

David Ford: I honestly don’t know.

Q1240   Oliver Colvile: It was in the national press, was it not?

David Ford: I do not always believe what I read in the press, and I am afraid I do not have the judgment entirely fresh in my mind, though it is on my desk.

Q1241   Oliver Colvile: Forgive me, Minister, but if something like that had happened, I think I would have said, “I wonder whether or not there is something in this. Can I just make sure we find out whether that is the case?” and try to get some corroboration to it? You are saying to me that you didn’t remember it and you didn’t actually take any action to find out whether there was any truth in it in the first place.

David Ford: Yes, because it was not my responsibility. I made it very clear that I was accepting no responsibility.

Q1242   Oliver Colvile: Okay, but the truth of the matter is that it did have an implication on your turf at some stage during the course of it. I am trying to ascertain as to how it is that we have got here.

The second thing is about when eventually the whole business of these letters came out. You said to us earlier that you have never asked for a copy of the letters. You never asked who was sent those letters. I just think it is rather curious, because if I were the Justice Minister—I have never been a Minister so you have an advantage on me—I would have thought, “I need to find out who has had these letters and what those letters might have ended up saying, because that has implications for future justice activity, which my Department is responsible for.” I find it very odd that you did not ask the NIO for a copy of those letters and the list of people, because that could have implications for future work that you were seeking to do.

David Ford: I do not see how it would have implications for the future work of the Department of Justice. It potentially has implications for the future work of the Police Service or the Public Prosecution Service, but in their operational area, where I would have no remit as Minister. I think what you are suggesting would take me perilously close to interfering in their operational responsibilities.

Q1243   Oliver Colvile: I would have thought that if we were trying to bring together court cases for some of these people, I would have actually wanted to know what the implications of this were.

David Ford: No. I would want the police and the PPS to be able to carry out their duties properly.

Q1244   Oliver Colvile: You didn’t talk to your colleague in Government here, who was responsible for policing and all of that, and say, “Don’t you think we need to be looking at this?”

David Ford: I am the person responsible for policing here. I am the Home Secretary and the Lord Chancellor, if you want to put it in those terms.

Q1245   Oliver Colvile: Thank you very much indeed for that, but I would have thought, therefore, that you would have wanted to get to the bottom of what letters had been done, what their implications were going to be, and whereabouts it was going to go. It seems that you didn’t do any of that. You say to us that the reason you didn’t do that is that you didn’t want to interfere.

David Ford: I think problems arose in this society in the past when politicians in this building interfered with what would have been seen as the normal operation of the justice system. I am extremely careful in my role as Minister since 2010 that nobody would make that suggestion of me. The issues that might arise in the future are issues of the police following up evidence and presenting files for the PPS for the PPS to consider prosecutions. They are not issues for the Department of Justice.

Oliver Colvile: Right. I think I understand that.

Q1246   Chair: I think what would probably concern us—you touched on it earlier—is your role in building up confidence in the justice system. You would accept that is your role, or one of your many roles?

David Ford: Yes, and part of the problem is that the only areas of Government that are currently looking at the difficult issues of the past are elements of the justice system, whether it be the Historical Enquiries Team within the PSNI, the legacy work of the ombudsman or legacy inquests from the coroners’ courts. That is where there are real issues about ensuring that we deal with the past in a comprehensive and joined-up way, which as I said earlier goes beyond the justice system. But the job and the funding that I have are for running the justice system now. There are other responsibilities that impinge on what happened in the past.

Q1247   Oliver Colvile: One final question. You also claim that all of this came about because of the Hyde Park bombings. One of the reasons why this has all fallen apart is because it has been claimed that nobody at any stage spoke to the Metropolitan police about the fact that there was further information and that these people were sought. I am curious to understand whether you, or anyone in your Department, might have ended up having a conversation with the Metropolitan police about those people. I suppose your argument would be, “Well, I didn’t even know it was going on in the first place, and therefore it was impossible.”

David Ford: There would be no role for anybody in the Department to have the kind of discussion you are suggesting had it been a terrorist crime in Northern Ireland, never mind in London.

Q1248   Oliver Colvile: So we don’t share anything from what happens in this place with what happens in England?

David Ford: Police services share information, but the Department of Justice does not get involved in policing matters.

Q1249   Kate Hoey: What is the strapline for the Department of Justice? When I was a Home Office Minister we always had a strapline about what our aims and objectives were. Do you have one?

David Ford: We do, and you have now made me forget it by the way you asked that question. [Laughter.]

Q1250   Kate Hoey: But there is one?

David Ford: Yes.

Q1251   Kate Hoey: I share some of my colleagues’ concerns. If I was the Minister of Justice, no matter what the background—we all understand the background and history here—and I didn’t know anything about the Downey judgment when someone rang to tell me about it, I would want to get to the bottom of it. I genuinely cannot understand why you did not feel that you really wanted to get to the bottom of it as soon as possible—not interfering as such, but you are responsible overall for the police, the Prison Service, the HET and all of those issues that are so much a part of the past and the future. Is it because you feel, as leader of the Alliance party and Minister of Justice, you have to be so careful that you do not rock the boat in any way? I genuinely do not understand why you did not want instantly to see the letters, to know the names and to know what the police had done. I genuinely don’t understand that.

David Ford: If by “rocking the boat” you are implying that I am concerned about not upsetting either the DUP or Sinn Fein, absolutely not. I have done plenty of things that have upset both of them, as I am sure at least one member of this Committee could inform you. I followed up with the Northern Ireland Office because that is my political connection to aspects of the justice system that are not devolved.

Q1252   Kate Hoey: Who do you talk to at the Northern Ireland Office?

David Ford: I talk to the Secretary of State.

Q1253   Kate Hoey: Who was the lead official you would have talked to in the Northern Ireland Office?

David Ford: If I have conversations, I have them with the Secretary of State.

Q1254   Kate Hoey: What about Mr Perry?

David Ford: Different officials within the NIO have responsibilities in different areas. The issue for me was not rocking the boat in that political sense, but the credibility of an independent justice system with an independent police service, an independent prosecution service and independent court decisions. That is where I believe any Minister of Justice in this society needs to be extraordinarily careful.

Q1255   Kate Hoey: I understand that, but the public’s confidence, both in your Department and in the whole justice area, has clearly been reduced, hasn’t it?

David Ford: I am not sure that it has had that significant an effect on the current working of the Department of Justice. It is another of those issues in the past that have not been resolved. That is the real issue.

Q1256   Kate Hoey: How could some of the victims feel confident in the future and getting to the bottom of some of these issues when the person responsible for deciding whether to prosecute is the person who was the lawyer for many years for all of the OTRs? How could people feel that that person could possibly be independent?

David Ford: You are now asking me to give judgment on the behaviour of somebody who has no formal responsibilities or links to the Department of Justice.

Q1257   Kate Hoey: But can you understand why people might feel concerned?

David Ford: I can accept that because in this society people carry lengthy memories of what somebody may have done years and years before. I can only say that, from what I have seen of the Director of Public Prosecutions, since he came into post he has done his job entirely appropriately and impartially. The reality is that there is nobody in a senior position in the judicial system who has not taken one side or another in a variety of controversial legal cases over the years. That is what happens in a small jurisdiction.

Q1258   Kate Hoey: Thank you. Can I just ask you about the idea that Sinn Fein said that someone got an OTR letter on 3 March? Who would have signed that?

David Ford: I haven’t the faintest idea, because that is a complete revelation to me. If Sinn Fein are saying it and the NIO are denying it, then it becomes an interesting question.

Q1259   Kate Hoey: Do you think Sinn Fein are just playing their usual game of—well, I don’t know what their usual game is. Why do you think they said that?

David Ford: I don’t know. I just know that Sinn Fein have a very effective media operation at times.

Q1260   Kate Hoey: Do you think we will ever really get to the bottom of all of this? What do you think our Committee might end up saying?

David Ford: I hesitate to tell the Committee what you might discover, when you are the ones who have been carrying out a detailed inquiry for some weeks and have a number of weeks still to go. If Lady Justice Hallett is inquiring into the formal legal processes—because that is her role as a judge— I would certainly hope that this Committee would get behind the politics of the decisions that were taken by a previous UK Government and continued by the current UK Government.

Q1261   Kate Hoey: One final question: do you find it strange that Sinn Fein don’t want to appear before us, given how nice we are?

David Ford: I can only say that on any occasion I have appeared before this Committee, including when we have been discussing some difficult issues, you have always been hospitable and civil to me. I would certainly recommend to anybody who asked for my advice on whether they should appear before this Committee that they should do so, but Sinn Fein don’t often seek my advice on such matters.

Chair: Thank you for that. I should just remind the Committee that we will have to wind up just before half-past.

Q1262   David Simpson: Minister, I have to express my astonishment. I know how this place works, having sat in it for some time, and sometimes we wonder how it works, but I find it astonishing that as the Justice Minister you have never asked, even out of curiosity, what one of these letters stated—just for your own information or whatever. I just find that astonishing. But you have given your explanation for it, and that’s fine.

David Ford: Just to repeat, David Ford private citizen might be as curious as everybody else, but the Minister of Justice has to be extremely careful about his role. Remember, there are many other aspects of the justice system which are not yet devolved. For example, issues like admission to separated conditions in Maghaberry prison are taken on behalf of the Secretary of State and I am not informed of them. That is the reality. I am not Minister of Justice with the same powers as the Cabinet Secretary has in Edinburgh.

Q1263   David Simpson: Yes, but you will accept that there are means and ways of trying to get these things sorted. However, the last time you gave evidence to the Committee—this is just for clarification—you said that you had requested some paperwork from the NIO. Has that been forthcoming and what was that information that you requested? Are you in a position to tell us?

David Ford: It was a number of issues, most specifically the issue of the role of the Prison Service, which is now my responsibility. I have had nothing back formally from the NIO up to this morning—I checked with officials this morning.

Q1264   David Simpson: When did you ask for that information?

David Ford: As I said to Naomi, I am not sure exactly when that was, but it was a very short time after this all became public, so it would have been in early March.

Q1265   Lady Hermon: Minister, can I just ask you to describe frankly to the Committee your working relationship with the Secretary of State after the revelations of the OTR scheme? You said that when you met the Secretary of State, you had had “a robust exchange”, which, roughly translated, means it was a lively meeting. How has this affected your working relationship with her?

David Ford: That was certainly a robust exchange—a lively meeting if you want to describe it like that.

Q1266   Lady Hermon: You were angry.

David Ford: I was more than a little angry, which is why that meeting happened about 24 hours earlier than had been originally suggested, because of the way the issue was described as devolved.

Q1267   Lady Hermon: So you demanded that the meeting be brought forward in order that the Secretary of State could clarify—

David Ford: That is effectively what happened, yes, and the Secretary of State was suitably gracious to agree that. Since then, on issues such as security matters, for example, where we have a regular meeting to discuss the issues which are on the interface between devolved and non-devolved matters, we have had a courteous and positive set of meetings; and we have discussed other matters face to face and by phone.

I probably have sufficiently poor memory—I forget to bear grudges. Having had that robust exchange I could see no point in continuing to be angry. The Secretary of State has a job to do today; I have a job to do today, and I have been seeking to do it to the best of my ability.

Q1268   Lady Hermon: I do not expect you to bear grudges—that is not the type of personality I would ever have thought you to be. However, what I really want to know about is trust. Your comments, certainly in the evidence that you have given to the Committee to date, have not been particularly complimentary about the Northern Ireland Office. Has trust in the Northern Ireland Office been seriously eroded because of this scheme and the revelation of the OTR scheme?

David Ford: It certainly was damaged to some extent, but I am not sure that I would agree with your precise phrase “seriously eroded.” In terms of the ongoing work that we have to do, we continue to maintain a businesslike and positive arrangement between the two Departments.

Q1269   Lady Hermon: Let me rephrase my question: do you trust the Northern Ireland Office after the revelations of the OTR scheme—that it was operated for four years after you took office as Minister for Justice?

David Ford: Without going too far into the details of a robust exchange of views, at that meeting I did specifically ask if there were any other similar issues which I should be informed of which I had not been informed of. I can assure you that there were none.

Q1270   Lady Hermon: Well, we have heard, of course, in written parliamentary questions—

David Ford: It is clear that there is an ongoing drip of information around this particular scheme. In the four months or whatever it is since this emerged, I have not seen evidence of any other issue—

Q1271   Lady Hermon: Would you be surprised if something else were unearthed or revealed?

David Ford: I would hope, on the direct, face-to-face assurance of the current Secretary of State, that there are no similar issues hiding in the woodwork somewhere.

Q1272   Lady Hermon: Likewise, since you were appointed as the Justice Minister in spring 2010—

David Ford: As a pedant, I have to point out that I was elected and not appointed.

Lady Hermon: Elected. Excellent—that is even better.

David Ford: The lady who proposed me is sitting opposite you.

Q1273   Lady Hermon: Yes, and you were endorsed of course by our Deputy First Minister, who knew all about the scheme.

David Ford: And by Mr Simpson, but not by Dr McDonnell.

Dr McDonnell: I still love you. [Laughter.]

Lady Hermon: We should delete that from the record.

Chair: We have two more questions to get in after Sylvia, so can we make some progress? Thank you.

Q1274   Lady Hermon: The scheme continued, we now know, for four years: the Secretary of State said that it had ended on 7 March 2014. So it continued for four years after the devolution of policing and justice and after your election as Justice Minister. How have the revelations about the OTR scheme and the numbers of those involved impacted on your confidence in the Chief Constable of the PSNI?

David Ford: Again, the Chief Constable has some responsibilities that he carries out for the Secretary of State. If the Chief Constable believed that he was continuing to carry out those responsibilities for the Secretary of State, it would have been appropriate that he carried on with the scheme as it was then in existence, so it has not affected my relationship with the current Chief Constable.

Q1275   Lady Hermon: And it was never once discussed with you, even privately with the Chief Constable or any of his senior officers, and none of the ACCs or the Deputy Chief Constable ever mentioned, in the privacy of a meeting with you, for four years that this scheme had been ongoing since at least 2000.

David Ford: Again, the issue is what you mean by ongoing. We are not sure exactly when the last referrals were made to it. We know a number were made just before devolution, but we are not sure whether others were made, or whether when the scheme continued this was merely the carry-over of those earlier referrals.

Q1276   Lady Hermon: I think we understand from the evidence given to us by Matt Baggott and Drew Harris[2] that in fact it would have continued. Yes, there was a bulk of names given over the day before devolution, but there were some others fed into the system after that.

Chair: Could we leave that? I have got two more in before half past, Sylvia.

Q1277   Nigel Mills: Can I ask you about the royal prerogative of mercy? That is now your responsibility to issue in Northern Ireland, isn’t it?

David Ford: In the devolved sphere, yes, but for terrorist crimes RPM would remain the responsibility of the Secretary of State.

Q1278   Nigel Mills: Have you issued any since you got that power?

David Ford: I have not.

Q1279   Nigel Mills: Do you believe as a matter of policy of open justice that where such prerogatives have been issued and who has received them should be in the public domain?

David Ford: I suspect the answer is that there are so many variations in cases that it is difficult to give a blanket answer, but if we believe that justice should generally be done in public, it might well be the case that RPMs should also be made public.

Q1280   Nigel Mills: So you would like to see the list of the several hundred people who have received one in Northern Ireland in the past 30 or 40 years in the public domain?

David Ford: I understand that that list is not even entirely available within the Northern Ireland Office.

Q1281   Nigel Mills: True, but you would agree that a list should be available to the public.

David Ford: I agree that justice should be open as well as blind.

Nigel Mills: So the list should be public.

Chair: Final question from Oliver.

Q1282   Oliver Colvile: Well, two questions. Have you ever asked for a copy of the list of people who have been given pardons?

David Ford: No.

Q1283   Oliver Colvile: Have you ever thought about doing so?

David Ford: Again, I think that is an issue for the NIO and not for me. While David Ford might be curious, as I said earlier, the Minister of Justice needs to be very careful.

Q1284   Oliver Colvile: Secondly, I don’t know the answer to this, but could you tell me who appoints the DPP and the permanent secretary to your Department? Did you inherit them?

David Ford: I inherited, if you put it in those terms, Nick Perry on the basis that, as part of the devolution arrangements, Nick was appointed by the NIO to be permanent secretary, just as others remained doing the job they were doing or the senior team was slightly reorganised on the point of devolution. I accepted that they were the people who came with a degree of expertise. I can remember saying on the first afternoon that there were some people who would politically wish to see them all sacked. As far as I was concerned, the issue for me was that it now said Department of Justice on the door, not Northern Ireland Office, and I was sitting behind the desk.

Q1285   Oliver Colvile: Do you appoint the Director of Public Prosecutions?

David Ford: No. The Attorney-General does that.

Chair: Okay. We are at the end of the session. Minister, you have been very helpful. Thank you very much for joining us.

David Ford: Thank you again. I trust the hospitality of Parliament Buildings has been suitable for you over these couple of days.

Examination of Witness

Witness: Barra McGrory QC, Director of Public Prosecutions for Northern Ireland, gave evidence.

Q1286   Chair: Thank you for joining us. We will crack straight on, if we may. You know what we are looking at. This is the second day of evidence we are taking in Belfast. It might help the Committee if you could give us your recollections of the on-the-runs administrative scheme: where it started, why it started, how it progressed. That might be very useful to us, if you would.

Barra McGrory: As you know, I am here today in my capacity as Director of Public Prosecutions. As such, I am the custodian of all of the records and papers that related to these events from 1999 onwards within the then Department of the Director of Public Prosecutions, which later became the PPS.

You will also know that I had another role in all of this when I was a lawyer in private practice. As to that role, I am restricted to some extent by professional legal privilege because my client at that time was Sinn Fein. There is some documentation on public record and I am happy to speak about that, if anyone wishes me to when we get to that point.

My purpose here is as DPP. I have submitted to you a written paper that outlines the history of these events from 1999 onwards.[3] It began on 7 November 1999 when my predecessor Sir Alasdair Fraser was approached by the then Attorney-General, John Morris I believe, to enter into discussions about how to resolve this issue. Do you want me to keep talking?

Q1287   Chair: On the confidentiality issue, we would not seek to press you on individual cases. Correct me if I am wrong, the confidentiality belongs to those individuals.

Barra McGrory: It does.

Q1288   Chair: Feel free to tell us about the scheme: where it started, how it got going, what it was for and why. If you could continue along those lines—

Q1289   Ian Paisley: You would be able to give us general answers, though.

Barra McGrory: I can, of course.

Chair: I think that is what I have just said.

Q1290   Ian Paisley: In terms of general numbers as well.

Barra McGrory: Yes. I have all the papers with me and I think we have the numbers in there.

Q1291   Chair: That is what I have just suggested.

Barra McGrory: It began in 1999. There were high-level political discussions between the Prime Minister and Sinn Fein.

Q1292   Kate Hoey: If I could interrupt, Chair. Are you saying that anything you are saying now is from the records that you inherited when you became DPP?

Barra McGrory: Yes.

Q1293   Kate Hoey: Not from your own personal knowledge of the OTRs, in obviously acting for people who would benefit from them.

Barra McGrory: Yes. I can talk about that as well. My knowledge comes from both sources.

Q1294   Kate Hoey: So you must be one of the most knowledgeable persons about the OTR scheme in Northern Ireland.

Barra McGrory: Yes. I will have to accept that.

Q1295   Kate Hoey: Therefore, you have a very important role in the inquiries undertaken by Justice Hallett, us and anyone else.

Barra McGrory: Yes, I do. I have spoken at length to Lady Justice Hallett and her team about all of this.

Q1296   Kate Hoey: Were you able to talk to her in any different way from how you talk to us, because this is public? Did she ask you about your personal involvement in the OTR scheme from the beginning?

Barra McGrory: We touched on it but the privilege issue applied there, too. Having said that, I do not think that the privilege issue is an impediment, if I may say so, to my giving this Committee or Lady Justice Hallett’s investigation a very detailed overview of the scheme from both perspectives. There is material in the public record concerning my previous role that I am happy to speak about insofar as what it might mean or imply.

Q1297   Chair: That would be useful. If you could continue.

Barra McGrory: The story begins about November 1999 from the perspective of the Department of the Director of Public Prosecutions. Sir Alasdair was contacted. Actually the Deputy Director was contacted by an official in the Attorney-General’s office and later in the day Sir Alasdair spoke directly to the Attorney-General. Anyone who knew Sir Alasdair will know that he was not only a man of the utmost integrity but he was fastidious in his record keeping and documenting of events. So, we have the benefit of his fastidiousness in that regard.

Lady Hermon: Thank you very much for putting that on the record.

Barra McGrory: He dictated a note on the evening of 7 November 1999 which documented the events on 5 November, in which he said that he had been informed that “Downing Street wished to obtain from the independent prosecuting authority”—who would have been the English Attorney-General at the time—“an undertaking that he would be willing to carry out a review at an appropriate time of the position of persons who were presently abroad but were wanted in Northern Ireland for various terrorist crimes. The Attorney-General”—this is Sir Alasdair’s note—“was minded to give such an undertaking”—

Kate Hoey: Sorry, with the greatest respect, we have got this statement. Are you just going to read through it?

Chair: Kate, could I chair the meeting? I am quite interested in hearing this statement.

Kate Hoey: It is a very long statement—it is five pages.

Q1298   Chair: If it gets to the point where it is going too long, then I will intervene. But I want it said in front of this Committee, and on the record, what happened and your involvement in that.

Barra McGrory: I do not propose to read the whole paper. I understand Ms Hoey’s concern about that, but this section of it is very important for Sir Alasdair’s reputation and the reputation of the prosecutorial authorities in Northern Ireland, which I feel is at risk of being damaged over all of this. This perspective needs to be put on the public record, if you don’t mind. I will be brief, but this is important.

Sir Alasdair noted that the Attorney-General “was minded to give such an undertaking. The director informed the Attorney-General, however, that he viewed the proposal as being fraught with difficulty. He pointed out that, in any event, such cases were kept under continual review by a Committee”—these would be the extradition cases—“comprised of a number of Departments.” He also pointed out that the undertaking that the Attorney was minded to give carried with it an implication that future decisions would be liable to be influenced to the benefit of fugitives.

He conveyed this directly to the Attorney-General. He informed him that “it could be damaging to perceptions of the independence of the prosecuting authority and the administration of justice”, and he observed that “it was inevitable that these issues would become public and that any approach should be fully explained in Parliament.”

What happened thereafter I will not go into in minute detail, but it is of importance. Sir Alasdair made it very clear in November 1999 that he had “grave reservations,” as the chief prosecutor for the jurisdiction of Northern Ireland, “about any scheme that would give a blanket undertaking, or that would be seen to compromise the independence of the administration of justice in this jurisdiction.” I believe that that materially influenced the Attorney-General of the day in terms of how he then approached the matter. But what happened thereafter was that everything was dealt with on a case-by-case basis.

We entered then into the processes, which, if I may say so, had three phases. There was what is termed in the papers as Sinn Fein list one, which was 36 names that was expanded to about 42. Those events went from 1999 to late 2001. In early 2002 it expanded into Sinn Fein two, which was a much bigger list—numbering over a hundred. Then there was Operation Rapid—which we will come to—from 2006-07 onwards. So there were those three phases.

Phase one, which was Sinn Fein list one—the list of 36 names—is difficult, because among those names were 17 escapees and quite a number of others who were unlawfully at large and wanted. This provided certain complexities, particularly in regard to the escapers, because those who had served more than two years would also have benefited from the two-year release scheme, so they had to consider how to deal with them.

There were those who had not served two years who would have had some time to serve and then there were others who were not escapees but who had skipped bail or who were on the list as well. The Attorney-General and the director had a number of meetings after this, to discuss the way things would be brought forward. It was determined that in respect of each of the names the police would indicate to the director what evidence there was to connect those names to any criminal activity. If the director considered that there was a triable case on foot of what he was given, he indicated that he would prosecute that person. I understand that those individuals then were given no indications to the contrary.

In so far as there were people in respect of whom the police said they had no evidence, or very little evidence, then the director said, “Well, on that evidence as it stands I wouldn’t be able to prosecute.” Then there were cases where there were already files in the DPP’s office and they were reviewed; and then of course there was the issue of the prisoners who had escaped who had served their time.

Among this group there was the difficult decision to be taken about prosecution for having escaped and for the offences which were committed during the course of the escape, as a consequence of which others had been tried and convicted. In that regard the public interest test was considered, and that is the only circumstance in which the public interest played a part in all of this. From the respect of most of the others the scheme concerned only the evidential test.

If I may just talk a little bit about how Sir Alasdair went about applying the public interest in relation to escapees—

Chair: Fairly briefly, because I would like to come back on some of the things you have already said.

Barra McGrory: Okay. Of course at the time—and I think it is important that people understand this—Sir Alasdair, as Director of Public Prosecutions, was subject to the superintendence and direction of the Attorney-General of England and Wales, to whom the powers of the Attorney-General for Northern Ireland had been transferred when Stormont had been prorogued. The Attorney-General was the person who had initiated this discussion.

Sir Alasdair, as I have put on the record, had expressed his grave reservations and had suggested that if there was any examination of these individuals it should be done on a case-by-case basis, and the evidential test should apply. However, in the context of the escapees there was a discussion about the public interest and Sir Alasdair sought advice from the Attorney-General. The conclusion was, as a consequence of that dialogue, that the public interest would apply in not prosecuting those individuals who had escaped for that particular offence.

In the context of considering the public interest, a range of factors was considered, including the fact that there was a political element to this, in terms of the political negotiations; but it was concluded that that alone would not be sufficient to exercise the public interest in favour of not prosecuting. There were broader considerations, and when an Attorney-General of a sovereign state is engaged in the public interest exercise in the United Kingdom state he undertakes what you call a Shawcross exercise, which is named after an Attorney-General in 1951, which takes into account the broader interests of the state across Departments, so that the prosecuting authority does not take decisions blindly. It takes them with a broad overview. That exercise was engaged in by the Attorney-General of the day, who was John Morris, and the conclusion was that the public interest would be applied only in respect of those cases.

It is such a long history from 1999 to 2010 that I think I will stop there and let you ask me questions.

Q1299   Chair: Can I pitch in with 2001, when the then Secretary of State, Dr Reid, prepared a draft Bill to deal with this issue; why was that necessary? We will ask him that, of course, but from your point of view.

Barra McGrory: Sir Alasdair, I think, was one of the first to point out that to try and achieve what they were trying to achieve, by way of using the normal prosecutorial structures, risked damaging those structures. If Government wanted to seek to bring about a situation where those who, in normal circumstances, would be arrested, interrogated and potentially prosecuted would not be, it would be preferable that that be done by way of open discussion in Parliament and through legislation rather than to seek to employ the prosecutorial structures to achieve that, because to do so risked damaging the reputation and independence of those structures.

Q1300   Chair: Without naming names, and I am not asking you to, that implies that those people should have been prosecuted ordinarily.

Barra McGrory: It was an extraordinary process.  We don’t know whether they should have been prosecuted ordinarily, because the reality of the scheme was that those who would normally have been sought out by the police, arrested and interrogated were not, because they were given the opportunity of remaining outside the jurisdiction or leaving the jurisdiction because of the scheme.  That is harsh reality.  It is not for me to seek to justify or criticise it; that is the effect of it. 

Q1301   Chair: But did those people, and surely this is the nub of the issue, receive letters saying that they were not wanted?

Barra McGrory: I have no doubt that many people received letters saying that they were not wanted who, in ordinary circumstances, the police would have liked to speak to. That is not to say that people who received letters saying that they were not wanted would automatically or necessarily have been prosecuted.  Those are two very different things.

Q1302   Chair: Indeed, they are innocent until proven guilty.  What I am trying to say is, if, for example, the 228 letters that went out went to people who were completely innocent of any offence, and not suspected of anything, there is no inquiry.  It is only of interest if people who ordinarily in, let’s say, England, Wales or Scotland would have been taken in by the police, perhaps arrested, and questioned, had received letters, because then, in effect, we have a different justice system operating.  That is the real kernel of the concern about the scheme.

Barra McGrory: It is the kernel of it. 

Chair: You agree.

Barra McGrory: It was a highly unusual circumstance in the administration of criminal justice—unique, I would say—but it was directly linked to the political circumstances of the day.

Chair: Indeed, but so was the early release scheme.

Barra McGrory: Yes.

Q1303   Chair: But that went through Parliament and it went through a referendum.  Of course, they attempted to bring it to Parliament in ’05 and then dropped it in January ’06, which again is an indication of the unusual aspect of it.  Would that be fair to say?

Barra McGrory: Yes.

Chair: It would. Thank you.

Q1304   Ian Paisley: Mr McGrory, do you accept that in terms of your standing and your status, you are the personification of the poacher turned gamekeeper in this case?

Barra McGrory: You have said that to me before, Mr Paisley, and it is not a term that I would like to use. 

Q1305   Ian Paisley: But you understand what it means.  The public out there who are following this look at all the niceties of us as MPs and you as the Director of Public Prosecutions.  Essentially, you represent the people who got on this list, and ultimately now you are the Director of Public Prosecutions, who determines whether people are prosecuted.  The term “poacher turned gamekeeper” is not meant as an insult, but you are the personification of that; you are in that role.

Barra McGrory: Well, sometimes poachers who turn gamekeepers are more effective gamekeepers than—

Ian Paisley: That might be very true.

Barra McGrory: —others who were not poachers.  I will take it as a compliment.

Q1306   Ian Paisley: Before I consider your specific role, I appreciate what you said about Sir Alasdair Fraser.  I understand that, and about the integrity of the office of DPP, no matter who is in there.  It is very important for you and your staff that that is on the record, and I appreciate your taking the time to spell that out.  Before you became Director, and as a solicitor in Northern Ireland, were you a hands-on strategist in this process, or were you simply a facilitating solicitor?

Barra McGrory: A facilitating solicitor, as I was for all my clients by the way, who numbered many more than simply Sinn Fein or any particular OTRs.  I have represented policemen, soldiers, politicians of various descriptions and many individuals not connected with this conflict as a professional.   I have discharged my professional duty with independence and integrity, I hope, throughout my entire career, and which I do so now as Director of Public Prosecutions.  The role that I played in this was actually quite minimal.  It is not significantly any more engaging than the available papers would suggest, and certainly I was no strategist, but I had a role to play as a representative of Sinn Fein rather than the OTRs as individuals, many of whom are clients of other lawyers.

Q1307   Ian Paisley: In paragraph 7 of the papers that you sent to us you indicated that meetings were held—one on 11th and one on 25th July 2000, and one in August 2000.  Out of that, 16 lines were established as to what should be on the list. Did you contribute to the formulation of that list?

Barra McGrory: No.

Q1308   Ian Paisley: You made no contribution whatsoever?  Were you at any of those meetings?

Barra McGrory: Not those meetings, no.

Q1309   Ian Paisley: Were you at any meetings that would have helped formulate that list?

Barra McGrory: No.

Q1310   Ian Paisley: So, you simply batted names into the process, as a representative solicitor?

Barra McGrory: Yes.  The instructions from Sinn Fein were that they had reached agreement elsewhere as to this process, and they asked me to submit the names on their behalf.

Q1311   Ian Paisley: So the actual mechanics of this scaffolding were already in place.

Barra McGrory: That’s right. Well, I have nominated as the lawyer through whom the names would be channelled to the authorities, but I had no hand, act or part in the devising of the scheme. 

Q1312   Ian Paisley: In terms then of the people who came on the list and the numbers, did you help to draw up, or refer clients, or indicate to your key client—in this instance Sinn Fein—that here were people who could be added to the list, or did they formulate the list entirely?

Barra McGrory: By and large Sinn Fein formed the list and—

Q1313   Ian Paisley: “By and large.” Explain that. 

Barra McGrory: My memory is that the vast bulk of the names came from Sinn Fein.  When it became known that I suppose I was engaged, occasionally someone would contact me directly, but that was very rare

Q1314   Ian Paisley: Would that name end up on the list?

Barra McGrory: It would. That was very rare.  I could only remember it happening on one or two occasions.  

Q1315   Ian Paisley: Okay. Did you help to formulate or shape the argument that there be non-prosecution for public interest in the cases that you identified earlier?

Barra McGrory: No, I didn’t.

Q1316   Ian Paisley: In terms of the process, as you know, and we are fast-forwarding to the current date, it continued until April of this year, as far as I am aware.  Since you became Director of Public Prosecutions, have any of those cases winged their way on to your desk? 

Barra McGrory: None.

Q1317   Ian Paisley: So you have had no dealing with this since being DPP?

Barra McGrory: No. One case was mentioned to me as being under consideration and as soon as the name was mentioned, I recognised it as that of a former client, so I told the Deputy Director and Assistant Director dealing with the matters at the time, and I had no hand, act or part in any consideration of that case thereafter.

Q1318   Ian Paisley: In terms of the types of people on the list, does Gerry Adams have one of these letters?

Barra McGrory: I don’t believe so.

Q1319   Ian Paisley: As his former solicitor, he would not have received one while you were his solicitor?

Barra McGrory: I don’t think so.  I actually don’t think he is in this category of person at all.

Q1320   Ian Paisley: Does Martin McGuinness have one of these letters?

Barra McGrory: I don’t believe so.

Q1321   Ian Paisley: Does Gerry Kelly have one of these letters?

Barra McGrory: I don’t believe so.

Q1322   Ian Paisley: In terms of the general group that we would call the leadership of the republican movement, could you identify anyone in the leadership of the republican movement who would have one of these letters?

Barra McGrory: No.

Q1323   Ian Paisley: What about Members of this Legislative Assembly, who are also members of the republican movement?  Would any of them have these letters? 

Barra McGrory: I don’t think so.

Ian Paisley: You don’t think so.

Barra McGrory: But I am not familiar with all the names on the list.

Q1324   Ian Paisley: Members of Parliament?

Barra McGrory: I don’t know. I don’t think so.

Q1325   Ian Paisley: Are you sure about that?

Barra McGrory: I am not sure.  I don’t think so.  I don’t have the complete list in front of me.

Q1326   Ian Paisley: Councillors?

Barra McGrory: I don’t know.  I don’t think so.

Q1327   Ian Paisley: Would you be aware of any public representative?  Would any of their names jump out to say, “Actually there is someone on the list.  I remember dealing with that”, or  “They were a client”?

Barra McGrory: No. Listen, when this scheme was set up, lists of names were handed in to my office over a period of years.  They were forwarded on to the police, mostly to the police at the time.  There came a point when I actually did not have any great personal engagement with it, even when I was a partner in the firm, because it was routine. 

Q1328   Ian Paisley: There are two final matters that I would like to probe with you briefly.   You mentioned the names Liam Averill and Patrick McVeigh in the submissions and papers that you have given to us in the circumstances.  Did those people receive a letter?

Barra McGrory: I think that Liam Averill was the beneficiary of a public interest decision. I might need to be reminded of the McVeigh situation. 

Q1329   Ian Paisley: By public interest, does that mean that they got a pardon? 

Barra McGrory: I think he was one of those escapees in respect of whom a public interest decision was taken not to prosecute—

Q1330   Ian Paisley: But did he get a pardon?

Barra McGrory:—although he escaped at a different time from the Maze.

Q1331   Ian Paisley: But did he get a pardon?

Barra McGrory: By the way, the office of the DPP had nothing to do with pardons. 

Q1332   Ian Paisley: I am not accusing you—

Barra McGrory: No, but I am not sure if he did.

Q1333   Ian Paisley: You’re not sure if he did?

Barra McGrory: I don’t think he did. 

Q1334   Ian Paisley: Right.

Barra McGrory: But it is of no—

Q1335   Ian Paisley: Because he tried to assassinate a Member of Parliament, and was never prosecuted for that.

Barra McGrory: I don’t know, Mr. Paisley.  I don’t know.

Chair: We probably ought not to get too far into that.

Q1336   Ian Paisley: Finally, you made a very telling comment in your opening statement, when you said that the police would like to speak to many of these people but they got letters. As a senior prosecutor in Northern Ireland, and remembering what you said, do you not think that it is incredibly distressing to know that the police would really have liked to speak to many of these people?  They could have gleaned evidence that could have led to prosecutions and convictions.  I am thinking of the tears of the victims who yesterday sat in the seat that you are sitting in, and that maybe those people could have got real, genuine closure as a result of that.  Do you not think that this on-the-run process, to which you have some contribution towards, has genuinely hurt and damaged confidence in the legal process in Northern Ireland?

Barra McGrory: I think that is a statement of fact that I would have to agree with, Mr Paisley, but I am not here to defend this process; I am here as an historian of what happened.  It was a process that was conceived by those who were in government of the United Kingdom, and in high-level political negotiations with Sinn Fein at the time.  It was considered expedient to do it this way.  It is not for me to make a judgment on that.

As a prosecutor, I simply have to agree that it is not a process that sits well with the prosecutorial function, and I think that Sir Alasdair knew that very well and voiced his concerns very clearly, as I was at pains to point out earlier.  But Sir Alasdair, as Director of Public Prosecutions, was under the superintendence and direction of the Attorney-General of the sovereign state, and it was the Government of that sovereign state who determined this course, not any prosecutor.

Q1337   Ian Paisley: By the way, you were never a member of Sinn Fein?

Barra McGrory: Never.

Chair: Given what you have told us, Mr McGrory, about the fact that, ordinarily, the police would have wanted to speak to these people and yet those people got letters, you could choose your own words, but would the word “amnesty” apply?  Could it apply?

Barra McGrory: No, it couldn’t, because an amnesty implies the wiping clean of the slate, and that is not what happened. What happened is that individuals were given an opportunity to remain outside the jurisdiction or to leave it, or to come back into the jurisdiction with the knowledge that the authorities were not seeking to tap their shoulder. That is far from an amnesty, yet, as I have said, it was a process that did not sit well with the administration of criminal justice. But it was not an amnesty.

Chair: Presumably when the police were asked to review each case, they said, “Okay. Some people we don’t want to speak to, others we do.”  Who then escalated that?  Who then changed that, which meant that the police wanted to speak to them and yet those people had received a letter saying, “You’re not wanted.”? Who translated that?

Barra McGrory: The names were submitted by my former office to the police. The police then—and I see it from the other side now: from the point of view of the office of the DPP—wrote to the office of the DPP and indicated whether or not they had any reason to speak to these individuals, and, if so, on what basis. Now, the majority of the individuals were in the former category in respect of which there was no evidence, and the police said they at that time did not want to speak to them.

Other categories of people included the submission of some evidence and that would be viewed by the prosecuting authority. If they thought that there was a reasonable basis for a prosecution, then that indication was given and those people obviously did not get letters. That is the category, obviously, in which Mr Downey should have been, but we know why he wasn’t.

The principal category was the category of person in relation to whom the DPP was told the police had no interest. That is currently being reviewed.

David Simpson: You will understand the revulsion of the general public whenever we received evidence from Drew Harris saying that these individuals who had either received pardons or on-the-run letters could have been involved in as many as 95 or 100 murders or attempted murders. You can understand the revulsion and the moral case that people would take against that.

As far as the general public are concerned and speaking personally, this whole system was immoral. We took evidence yesterday from the victims organisations and listened to what they had to say. Their attitude is that because of this and because of the process that you were involved in at an earlier stage of your life or career, they, as individuals, may never now see justice—that is really the bottom line—because of this murky deal thrashed out between Sinn Fein and the Government, the NIO.

We have heard evidence from Norman Baxter, who said that he believed that there was an understanding in the NIO that republicans were not to be prosecuted. He outlined a couple of incidents where they had apprehended a number of individuals. Mr Adams rang No. 10 and No. 10 then took their road down to the police to try to get these individuals released.

Whenever we look at all this, and we can paint it up whatever way we like as regards why it was done—that Sinn Fein may have jumped off the whole peace process, which I think was a nonsense—it was a murky, dirty deal. We have taken a lot of evidence from different ranks of the PSNI, including former Chief Constables. In all the evidence, we have been told that no one knew anything about this. What is your understanding of the role of the PSNI—or, in the earlier stages, the RUC—in this?

Barra McGrory: The police engaged with this process. You have heard from the current Chief Constable and Sir Hugh Orde; I am not sure whether you heard from anybody else.

Chair: Ronnie Flanagan.

Barra McGrory: Ronnie Flanagan, of course—sorry, I do remember his evidence about this. The Police Service took a decision to engage with the process, also at the request of Government, and it was the Police Service that provided the information to the Director of Public Prosecutions that certain individuals were no longer of interest to them when perhaps they were. But the scheme was based on evidence rather than intelligence, so the indications given to the department of the Director of Public Prosecutions were based on available evidence—a very different thing, of course, from intelligence or information that the police might have had that would have connected individuals to crimes.  If there was a flaw in the scheme, it was that the communications were on the basis of evidence rather than information, but the police took a decision to enter into that process, knowing that that was the case.

Q1338   Lady Hermon: That was the flaw in the scheme.

Barra McGrory: An investigative decision was taken not to pursue information.

Q1339   Lady Hermon: Just repeat that please, Mr McGrory.  The flaw in the scheme was that it was evidential rather than intelligence-based.

Barra McGrory: I said, “If there was a flaw in the scheme”. It is not for me to say that it was flawed.

Q1340   Lady Hermon: It was a flaw. That was the flaw. I think that is what you said to the Committee, actually.

Barra McGrory: Look, it is for others to say that the scheme was flawed.

Q1341   Chair: Put it in your own words.

Barra McGrory: The scheme was a politically expedient one to reach a point where a political process—the peace process—could proceed to another level.  It was perceived by the Government at the time that it could not do so unless this large number of people who classed themselves as on the run could be addressed—dealt with.  The way in which they were dealt with was by way of this scheme.

Q1342   David Simpson: Can I just ask another question?  To your knowledge, why were the Prison Service able to forward the list in July 2001?

Barra McGrory: That would be a list of people who had escaped—who ought to have been in custody but were not, so they were part of this as well.

Q1343   David Simpson: So that is how they were able to do that.  Okay, that is fine.  I will come back in a moment.

Barra McGrory: Lady Hermon, if I can say—

Q1344   Lady Hermon: Yes, of course.  Let us retract now.

Barra McGrory: No, I am not retracting anything.  I said, “If there is a flaw in this scheme”, but I suppose that if the scheme had not been constructed in that way it probably would not have worked politically.  It is not for me to make a judgment on whether or not it was flawed; it is for society and history to make a judgment on that.  From a prosecutorial point of view, speaking as a prosecutor, the scheme was flawed in the sense that it submitted names to the prosecution service in respect of whom there was potentially evidence on the basis that the police had no interest in those individuals when, in fact, in other circumstances, they would have done.

Chair: That is a very important point. 

Lady Hermon: Can I continue?

Chair: I have a list, so I will get back to you, Sylvia.  Oliver first.

Q1345   Oliver Colvile: Mr McGrory, thank you very much for coming to talk to us.  What you have said so far is very helpful.  Can you talk me through how you got the job?  You were appointed by the Attorney-General.  Was that the British Attorney-General or the Northern Irish Attorney-General?

Barra McGrory: The Northern Irish Attorney-General. 

Ian Paisley: They are both British, by the way.

Q1346   Oliver Colvile: Sorry, perhaps I should have put it this way: the Whitehall Attorney-General.  Were you head-hunted for the job, or did you have to apply for it by submitting a CV, as most people do?

Barra McGrory: I applied for the job.  It was advertised in the press.  Under the current justice architecture for Northern Ireland, the Attorney-General has responsibility for the appointment of the Director of Public Prosecutions, but he went about it in a very open and fair way by setting up a selection panel, which he chaired.  On it were the Lord Advocate of Scotland at the time, now Dame Elish Angiolini, the then chief inspector of criminal justice, Michael Maguire, who is now the ombudsman, and the then president of the Law Society, Mr Brian Speers.  It was a competition, and others were interviewed.

Q1347   Oliver Colvile: Obviously, you had previous knowledge about the names of the people who had been submitted to potentially receive these letters.

Barra McGrory: It was the furthest thing from my mind when I applied for this post.

Oliver Colvile: I am sure.

Q1348   Lady Hermon: You did not declare on your application form your involvement in the OTR scheme.

Barra McGrory: There was no question on the application form which would have indicated any need to declare it.  In my professional life I have been involved in many, many different types of case, and there was no need.

Q1349   Lady Hermon: So you were just keeping your fingers crossed that the Mr Downey case would not happen, and therefore the OTR scheme would not see the light of day. Did you just keep your fingers crossed?

Barra McGrory: Not at all, Lady Hermon. I had no knowledge of Mr Downey’s existence until Mr Justice Sweeney’s judgment.[4]

Q1350   Lady Hermon: But you had knowledge of the OTR scheme and you did not disclose that in an application to become the senior prosecutor, the DPP, in Northern Ireland. You kept that quiet.

Barra McGrory: There was no question on the application form that would have required such a declaration. I have been involved in countless cases and given advice to countless people on very sensitive matters, and there was no basis whatsoever on which I would have been expected to make such a declaration.

Q1351   Oliver Colvile: What ended up happening is that you got the job and you had knowledge of the people you had put forward, because you had been the gatekeeper for Sinn Fein. That ended up going through, but did you not at any stage know what the outcome was for those people? Didn’t you know whether they had been accepted or denied?

Barra McGrory: No.

Q1352   Oliver Colvile: In so doing, have you at any stage, as Director of Public Prosecutions, asked the Northern Ireland Office, or whoever you have to go to, who is on that list? If I were the director of Director of Public Prosecutions—I am not a lawyer, so I am talking from a sense of ignorance—I would want to know who was on the list. If you take a case and have to decide whether to prosecute people, you would want to know who might or might not have received a letter that said, “You’re okay, chaps. You have the ‘get out of jail free’ card.” Have you ever asked for that information?

Barra McGrory: My office knows the names of people who got the letters, so there was no need for me to ask. It is all documented, and we have already had one case in which someone claimed he was immune from prosecution as a consequence of this scheme. That failed, so my office prosecuted him.

Q1353   Oliver Colvile: So your office does have a list of all those people?

Barra McGrory: Yes.

Q1354   Oliver Colvile: Have you shared that with the Attorney-General for Northern Ireland?

Barra McGrory: He has no prosecutorial function.

Q1355   Oliver Colvile: And you haven’t shared it at all with the Justice Minister, either?

Barra McGrory: No, he has no prosecutorial function, either. The letters are not an impediment to prosecution as far as we are concerned, and I can come to that.

Oliver Colvile: I find it very curious as a layman that some people seem to know about it but an awful lot of other people, including elected politicians, don’t seem to know about it.

Q1356   Kate Hoey: Just following on from that, Mr McGrory, do you not feel that the public should know that list of names? I am particularly talking about the victims, who might well want to know whether the person walking down their street has received a letter—as you know, in small communities people know things.

Barra McGrory: That is a difficult question, because you start to get into dangerous territory when you publish lists of names of suspects. Don’t forget that the status of those individuals is that of suspects—that is all.

Q1357   Kate Hoey: Yes, but the letter is actually saying—you have seen the letter, so presumably you have seen the wording of some of the letters. They are different wordings, we understand.

Barra McGrory: I have since I became Director of Public Prosecutions. My role in private practice, apart from some engagement with Peter Sheridan and the Attorney-General’s office back in 1999, was simply to submit names. I never saw the letters at that time, but I have seen them now.

Q1358   Kate Hoey: Why were you shown them now? Who showed them to you?

Barra McGrory: Once the whole issue erupted after the Downey judgment, I made it my business to find out everything.

Q1359   Kate Hoey: To whom did you go to say, “Can I have the letters, please, because I am just the public prosecutor?”?

Barra McGrory: I asked the assistant director in my office who has had responsibility for those matters in recent years to prepare a report for me and to give me all the papers.

Q1360   Kate Hoey: This may seem really naive, but where is that list sitting? Whose office has it? Who knows the list? Who has the names?

Barra McGrory: We do, and so does the office of the Attorney-General and the Northern Ireland Office because of the way the scheme operated. The DPP expressed a prosecutorial view on lists of names. That view was passed to the Attorney-General’s office in London. The Attorney-General then passed the names to the NIO, which, it now transpires, issued the letters. The office of the DPP had nothing to do with the issuing of the letters.

Q1361   Kate Hoey: But we all know, for example, the names of the people who were given early release—that went through the parliamentary system—but we do not know this. What is the difference? Publically, everyone knows who got early release, because of the agreement and the parliamentary process, but there was no parliamentary process in all of this. What comes through in all of this and from all the evidence is the fact that this is so secretive—unless you are in the in. Someone like Gerry Adams presumably knows the whole list. Gerry Kelly presumably knows the whole list. Martin McGuinness knows the whole list—

Barra McGrory: They do—

Q1362   Kate Hoey: Peter Robinson does not know the whole list.

Barra McGrory: No.

Q1363   Kate Hoey: Do you not think then that there might be a little feeling of something being one-sided in Northern Ireland?

Barra McGrory: Okay. If I can deal with this in this way: the difference between those who were released under the early-release scheme and these individuals is that the people released had been convicted in a court of law and given prison sentences—they were released. These other people had the status of suspects—

Q1364   Kate Hoey: But some had escaped—

Barra McGrory: Some had escaped, yes, but I presume those names are in the public domain.

Q1365   Kate Hoey: Well, they weren’t imprisoned for nothing.

Barra McGrory: No. I think those names are in the public domain. I do not think that there would be any difficulty in releasing those names.

Q1366   Kate Hoey: Could you send us the list of those names and, indeed, the whole list? Do you not think that this Committee should have the names of the whole group of people?

Barra McGrory: I’d be obliged if I didn’t answer that right now. I may need just to think about that. Unless there is some legal impediment to that, I see no difficulty in principle.

As I say, these people have the status of suspects. They are analogous perhaps to people in other categories whom the police suspect of having committed, say, sexual offences or something—it would be wrong to publish lists of suspects who have not had the benefit of due process. In normal circumstances, that is frowned upon, but these were highly unusual circumstances.

What you say about the likes of Sinn Fein individuals knowing the names—of course they do, because they were the ones who put the names forward.

Q1367   Kate Hoey: Yes, but it still comes across to the public as being very one-sided.

Barra McGrory: And that is exactly what Sir Alasdair was very prescient about in November 1999, when he was asked to engage with all this, although in a different form.

Q1368   Kate Hoey: It would be very helpful if you could consider sending us the names.

May I ask one final question? In terms of being Gerry Adams’s solicitor all through the years, do you know anything about any agreement that might have been made? Yesterday, we heard one of our witnesses say that they felt that Gerry Kelly thought that he was above the law—one of the reasons why he would not come to this Committee. I asked whether they thought that perhaps Gerry Kelly, Martin McGuinness and Gerry Adams feel that they are above the law because there has been another hidden deal somewhere, that whatever happens they will never be prosecuted.

Barra McGrory: I assure you that there is no such deal.

Q1369   Kate Hoey: But you would not be involved in whether any of those people were to be prosecuted, because of your earlier role as solicitor.

Barra McGrory: I recuse myself from any consideration of a prosecution in which I think I have a conflict of interest.

Q1370   Chair: If you were still Sinn Fein’s solicitor, which you are not, would you see any reason why they should not appear in front of this Committee, in public?

Barra McGrory: That is a matter for them—between you and them. I do not really want to engage in that.

Q1371   Nigel Mills: May I take you back to a comment you made a little while ago, Mr McGrory, about how you did not see these letters as an impediment to prosecution? Will you just explain that comment? Maybe I misunderstood.

Barra McGrory: The letters are an indication to individuals at the time that they received the letter that they are not sought or wanted by the authorities in the investigation of any crime. That is the height of them in terms of their prosecutorial value or legal status, so in respect of any one of those individuals, if evidence subsequently becomes available—I think the letters are couched in such terms—the situation changes and they can now become sought after.

In terms of the evidential situation at the time the letters were issued, there was no prospect of a prosecution of those individuals at that time. Of course, Mr Downey got one by mistake—he shouldn’t have received that letter—but in respect of those in relation to whom the letters were accurate at the time, they should all now be aware that the letters may not still apply.

Q1372   Nigel Mills: Okay. That brings us to the question of what is new evidence. How would you, as a prosecutor, define new evidence?

Barra McGrory: In a number of cases, for example, DNA, which is more advanced than it was then, although it existed then, is produced to connect individuals to crimes. That was not in existence when letters may have been issued, and that then changes the evidential situation. Examples include DNA found on cigarette butts at crime scenes, blood traces or perhaps fingerprints. There are a range of circumstances in which evidence might become available and, in some cases, in respect of which evidence was overlooked in the original investigations.

Q1373   Nigel Mills: So if there was a fingerprint in a file that was not spotted when the review for the letter was issued, and it was subsequently found, do you think that is new evidence?

Barra McGrory: Yes. That is strong new evidence.

Q1374   Nigel Mills: Even though it was available to the Crown in all its various forms at the time? Even though it was on the files and should have been found if a competent review had been done earlier or even at that time? If it is subsequently found, that counts as new evidence?

Barra McGrory: Very much so, and a number of cases have been successful on that basis. A number of historical prosecutions have been successful—unfortunately, few in number, but—

Q1375   Nigel Mills: With letters saying, “You’re not wanted for any pre-1998 offences.”

Barra McGrory: The letters were couched in terms that, on the available evidence at the time you received the letter, you were not wanted for questioning, so those people may have considered themselves free to come into the jurisdiction, but they did so at their own risk. So if evidence emerges now, those individuals can be arrested and connected to those crimes. If I may say so, there is a tendency sometimes to overstate the legal value of those letters. I say that very carefully, because I understand that the process through which those letters were issued is, none the less, as I have accepted, highly unusual. But, nevertheless, those letters are of limited value to their recipients.

Q1376   Nigel Mills: So, if you, now, as a new prosecutor, were to re-review the file and say, “Actually, I think there is enough evidence to prosecute”—even if it is pretty much the same file as when the letter was issued—could you change your mind and now prosecute?

Barra McGrory: Absolutely.

Q1377   Nigel Mills: So, even if there is no new evidence—

Barra McGrory: Sorry, no new evidence? The prosecutor takes his or her evidential decision on the basis of the evidence available, so, at any time, a new prosecution decision can be taken—if there hasn’t been a prosecution before—on the available evidence. The fact that somebody may have got one of those letters is not considered an impediment to taking a prosecution.

Q1378   Chair: Can the public interest argument change?

Barra McGrory: It can, but it is very rarely employed in this situation. I cannot conceive of any terrorist-related case in which there would not be a public interest to prosecute. That is not to rule it out entirely, but there would be a very strong public interest in prosecuting any such case.

Q1379   Nigel Mills: Effectively, these letters are, then, in your view, largely worthless.

Barra McGrory: Yes. They are not, maybe, entirely worthless, but I think they are largely worthless. That is my view as a prosecutor. Mr Downey’s was worth something, because he had been misled into thinking there was no evidence. If you look at the judgment of Mr Justice Sweeney, the only basis upon which the abuse of process application was allowed in the Downey case was that he not only got a letter in error in 2007, but there were two opportunities to rectify that—one in 2008 and one in 2009—that were not taken. So the view of Mr Justice Sweeney was that the degree of culpability of the state in its mistake was so great that it was an abuse of process of the court.

That must be a very rare circumstance, because it was not only mistaken, but the state knew it was mistaken and, on two separate occasions, it repeated the original mistake. In terms of the value of a letter like that in an abuse of process case in other circumstances, I think, as a prosecutor, it is virtually worthless if the evidence is there. And especially now that any recipient of those letters ought to know that.

Q1380   Naomi Long: Barra, thank you for your evidence so far. Can I explore that last point with you? You said that the letters are not an impediment to prosecution. You also said that people came back at their own risk. Why did you feel that it was so important to pursue the letters in the first place in your previous job?

Barra McGrory: You know, I did not really pursue anything—

Q1381   Naomi Long: We have read the correspondence where you did pursue them—quite aggressively at one stage in one of the letters that you sent.

Barra McGrory: I do not think that I ever did anything aggressively.

Q1382   Naomi Long: Well, doggedly, then, if you prefer, but you certainly pursued them.

Barra McGrory: I have represented any client I have represented with all due vigour and, if I was instructed to make representations to seek a certain outcome, I did so. And I do so now as a prosecutor. That was then and this is now.

Q1383   Naomi Long: I understand that, but the now that we are dealing with is on the basis of what happened then, so this is quite important. Why were these letters so important to your clients? Indeed, why did you pursue them so vigorously if you believe that they really do not change anything in terms of the ability to prosecute the individual? They could have returned at their own risk at any time; they went on the run voluntarily, so they could have waited to see whether the police would arrest them or question them or whatever. Why were the letters important if they did not change whether someone could be prosecuted?

Barra McGrory: They were politically important to the Prime Minister and the leadership of Sinn Fein to move the process to the next stage. Obviously, since the police at the time had engaged in the process of giving the letters, there was a certain amount of confidence in certain quarters that they were no longer being pursued. I think that confidence will now have abated.

Q1384   Naomi Long: You mentioned also that you have prosecuted someone who was in receipt of a letter, or that someone has been prosecuted. Is that correct?

Barra McGrory: We have, yes, shortly before I came in. And another prosecution is under consideration. In fact, it is under way, but the recipient of the letter has challenged the prosecution on the basis of the receipt of that letter. So this issue will be tested in the court imminently.

Q1385   Naomi Long: On the previous occasion, was that a successful prosecution?

Barra McGrory: Yes, it was. But it was a case that you knew well—

Ian Paisley: He didn’t have the letter.

Barra McGrory: He did not get the letter, although he understood that he should have got one.

Q1386   Naomi Long: We know the case. So actually no one has been successfully prosecuted who has been in receipt of a letter.

Barra McGrory: Not yet.

Q1387   Naomi Long: So the case being prosecuted at the moment will be the first test of this since Downey.

Barra McGrory: I really am not in a position to speak about it.

Q1388   Naomi Long: I understand that. You said that you had no role in developing this scheme and that your role was simply in passing the names to the scheme that was already in place. Is that correct?

Barra McGrory: That is correct. The scheme was devised by politicians.

Q1389   Naomi Long: And you had no role in developing or advising around that.

Barra McGrory: Well, I did give some advice at the time, but I was not involved in the discussions or negotiations that came up with this scheme.

Q1390   Naomi Long: But you gave advice as to the basis on which the scheme might operate.

Barra McGrory: Yes.

Q1391   Naomi Long: Were you the individual who introduced the notion of the article 3 right as part of the grounds for developing this scheme?

Barra McGrory: No, I have no idea where this came from. If you look at Mr Justice Sweeney’s judgment, there are two separate sentences that have been conjoined in public perception.  The first says that Mr Baxter, at a meeting, referred to the fact that there had been a letter from a solicitor, and that they needed to engage with the process.  There is then a full stop, and the next sentence goes on to say that the review was on the basis of article 3 of the European convention on human rights.[5]  I have no recollection of ever making that claim on anybody’s behalf, and nobody can find any record of it, so nobody knows where it came from.  Perhaps Mr Baxter can enlighten us.

Naomi Long: Am I not correct in saying that at the time we took evidence from Norman Baxter, correspondence was produced from yourself, citing article 3 rights?  I am working from recollection here, so I do not want to be too dogmatic about it.

Chair: We will look at the information.

Q1392   Naomi Long: My understanding was that article 3 was cited in that correspondence, which is why I am asking the question.  As things stand, do you believe that article 3 rights are engaged in dealing with those who went on the run?

Barra McGrory: I don’t know.  Article 3 of the European convention deals with safeguarding against torture and inhuman and degrading treatment, and I know of no construction of it which would support this scheme.  I do not know where that came from.  I say that with great hesitation because maybe I made such a submission at some point, but I do not remember it.  Nobody has produced it.  I think it is a mistake on Mr Baxter’s part.

Chair: We will check that.

Q1393   Naomi Long: I would like to because it is quite important.  You do not know who introduced that argument or defence into the mix?

Barra McGrory: I don’t.  I hesitate slightly because documents have been produced to me which I did not recollect.  I started engaging with this 15 or 16 years ago, so I would always have that caveat.

Q1394   Lady Hermon: Can I come back to your very interesting evidence about the status of the OTR letters?  You have said clearly and repeatedly that in fact the letters were not an impediment to prosecution.

Barra McGrory: That is my view as a prosecutor.

Q1395   Lady Hermon: So would you recommend that the 228 recipients of these comfort letters should simply shred them? If they are no impediment to prosecution, what value do they have?

Barra McGrory: I would argue, as a prosecutor, that they are of no value to them.

Q1396   Lady Hermon: How do you reconcile that with the evidence that we received from Mr McGinty that if people who received these letters were going to prosecuted afresh—anew, or for the first time—they would have to be given some notice so that we could avoid the argument of an abuse of process?  Is Mr McGinty wrong?

Barra McGrory: No, although I have no doubt that if evidence emerges concerning someone who is a recipient of one of these letters and we bring a prosecution, they will seek to raise that argument.

Q1397   Lady Hermon: Absolutely.  How do we avoid a Downey outcome and a Downey judgment?  We will have abuse of process arguments every time.

Barra McGrory: Because the Downey case was unique—well, let us hope that it was unique—in that he was the recipient of a letter when he should not have been.  The basis of the abuse of process in the Downey case—I know that you are aware of this, Lady Hermon—was that he acted to his detriment in receipt of a promise which, he was unaware, was a mistaken promise.  That was the very narrow basis on which Mr Downey succeeded in his argument.  In relation to the vast majority of these people, the letters themselves stated that they were only as good as the day they got them, and that if any evidence emerged, they could be prosecuted.

Q1398   Chair: So did Mr Downey’s.

Barra McGrory: Yes, but Mr Downey’s letter was mistaken in that he was told there was no evidence, but there was evidence.  Everybody else was told that there was no evidence, and there was no evidence when they got their letter, but evidence may emerge.

Q1399   Naomi Long: What about the lost fingerprint argument, for example?  That would be evidence that did exist.

Barra McGrory: We are starting to get very legalistic.

Chair: Back to Sylvia.

Q1400   Lady Hermon: Are you saying categorically to this Committee that you are not fearful of an abuse of process argument arising if you seek to prosecute any recipient of an OTR comfort letter?

Barra McGrory: All prosecutors should be fearful of abuse of process arguments, but I feel they are abuse of process arguments that could be rebutted. It is for a court to determine that, and there will be an opportunity in the not-too-distant future to test that. I am hesitant to say any more about it, Lady Hermon, but it is my professional opinion as the chief prosecutor of the jurisdiction that these letters are of not great legal significance.

Q1401   Lady Hermon: Not great legal significance.

Barra McGrory: Of little legal significance.

Q1402   Lady Hermon: Of little legal significance. We are getting there.

Barra McGrory: I will try to phrase it a little more elegantly.

Q1403   Lady Hermon: So do they keep them, or do they not? Do they shred them, or not?

Barra McGrory: Anyone who is in receipt of one of these letters—

Q1404   Lady Hermon: Do they sleep easy in their bed?

Barra McGrory: They ought not to be sleeping easy in their bed.

Q1405   Chair: Could I come back to the advice that you gave on the scheme? You admitted that you gave advice on the scheme. Did you at any stage suggest that it should merely be an evidential test and not the intelligence test? Did you insist that it was an evidential test rather than the wider intelligence-based test—that the police had no intelligence on your clients? Was that the sort of advice? You hesitate.

Barra McGrory: I don’t think I can answer the question.

Q1406   Lady Hermon: Why?

Barra McGrory: First, it strays into issues of privilege in terms of what discussions may or may not have taken place between me and my clients, and I can also say that I have not sought to refresh my memory of those discussions.

Q1407   Lady Hermon: You have wilfully not sought to refresh your memory so that you can come before a Committee and say you don’t recall.

Barra McGrory: No, no, no.

Q1408   Lady Hermon: Why would you not seek to refresh your memory when you know that you are giving evidence to Lady Justice Hallett and when you know that you are giving evidence to this Select Committee? What is the advantage of that?

Barra McGrory: Because those discussions are covered by legal professional privilege and I do not think it would be appropriate that I do so.

Q1409   Lady Hermon: The interesting thing of course is that you are unable to refute categorically that you gave advice on whether in fact it should be an evidential test or an intelligence-based test. That is why it is interesting.

Barra McGrory: I am not even allowed to confirm or deny it.

Q1410   Lady Hermon: After you became DPP you knew that there is a statutory duty—a statutory duty—to uphold public confidence in the impartiality and independence of the criminal justice system in Northern Ireland. I am very concerned about your earlier reply to my question that in your application to become the DPP of Northern Ireland, you didn’t disclose it because there wasn’t a question on the application form. But with hindsight you now know how very damaging the whole revelation around the Downey case has been to public confidence and the rule of law in Northern Ireland. Surely, you should have been circumspect when you were applying to become the DPP, in which we have to have complete confidence—all sides of the community have to have complete confidence in you as DPP—and that should have been disclosed on your application form.

Barra McGrory: I have to say, Lady Hermon, that I am disappointed that you ask that question in such terms because the implication is that it is not appropriate that I have been appointed Director of Public Prosecutions when—

Q1411   Lady Hermon: That is not what I said, Mr McGrory.

Barra McGrory: The implication is clear in the question because you are being critical of the fact that I did not volunteer in the application form, when there was no basis in that application form on which I could have volunteered it, that I had been involved in this particular professional engagement. With the greatest respect to you, I don’t think it is an appropriate question.

Lady Hermon: I have the greatest respect for you too, Mr McGrory.

Chair: Order. We have covered this earlier. Is there anything new coming out? [Interruption.] Well, I do not want another question on this point because we had three or four earlier. Sylvia, is there anything else?

Q1412   Lady Hermon: Thank you. I do not want Mr McGrory to twist my words at all.

Chair: No, but we have covered this point.

Q1413   Lady Hermon: No. I am sorry Mr Chairman. The point is that this scheme has been seen publicly to benefit friends of Mr Gerry Adams. It applied only to Republicans, so it has become very divisive. What we need is public confidence in the DPP’s office. I personally have confidence in you, Mr McGrory, and I am putting that on the record. I just think that it should have been declared at the time of your application so that it was public knowledge, but you decided not to.

Barra McGrory: It was not the fact—we are covering this ground again—that I took the decision not to declare something that ought to have been declared. I am saying very clearly that there was no basis in the appointment process upon which any of the applicants—there were several others—would have been expected or asked to have declared any professional engagement that they had before, in terms of who or what they advised. That included other defence lawyers and other prosecutors.

Q1414   Kate Hoey: Did it come up in the interview? You told us how you were interviewed by this very wide panel of the great and the good. Did it come up?

Barra McGrory: No.

Q1415   Kate Hoey: No one asked you about your past at all?

Barra McGrory: Yes, in terms of my life’s experience and my legal experience.

Chair: Order. We are now 12 minutes over time and I want to bring in one more question. Sorry to cut you off, but we are over time anyway.

Q1416   Dr McDonnell: Thank you, Chair, and thanks to Barra for the excellent evidence that you have given in terms of some of the detail. I have certainly learned a lot.

I want to cover a couple of quick points that you probably mentioned earlier but I want to recap on. Are you aware when the DPP’s office became aware that the letters were being sent out? Was it only in the later stages, or was it in the early stages? Was Sir Alasdair Fraser aware that something was going on in the undergrowth?

Barra McGrory: Yes. Sir Alasdair became engaged with the scheme to give a prosecutorial assessment of the individuals whose names he was given by the police. It would have been clear that there was some method of communicating that to the individuals concerned, but the Department of the Director of Public Prosecutions was not involved in that and was not sighted on the majority of the letters at that time.

Q1417   Dr McDonnell: When do you think that the Department became sighted? Was it only with the Downey case?

Barra McGrory: No. It would have been aware of the broad nature of the types of letters being given out.

Q1418   Dr McDonnell: Going back, there were two Sinn Fein lists, and then there was Operation Rapid. Were the lists cleared before Operation Rapid started, or was there an overlap, or did one run into the other?

Barra McGrory: One ran into the other. The first list of 36, which was expanded to 42, was Sinn Fein list 1. Sinn Fein list 2 came into existence around 2002 and grew as the years passed.

Q1419   Dr McDonnell: But it ran up until when?

Barra McGrory: Operation Rapid[6] came in around 2007 in an effort to try to expedite it all.

Q1420   Dr McDonnell: The point I want to make is that in the abuse of process you mentioned, there were opportunities to correct the Downey letter in 2008 and 2009. How would you have seen that correction being communicated? Would it have made sense for the police to arrive at Downey’s door at some stage and say, “That letter was a mistake. You are wanted”?

Barra McGrory: Had Mr Downey been alerted to the fact that the letter was a mistake, I dare say that he would never have flown through Gatwick on his holiday, so it would never have happened. But it could have been rescinded and it wasn’t. That was the nub of the Downey abuse of process application: the original mistake was compounded not once but twice, in that opportunities to rescind the letter were lost. That is why it happened.

Chair: One very quick, final question.

Q1421   Ian Paisley: You want us to take a very benign view of these letters now—that they are of little legal significance. You are saying that they are not entirely worthless, but that their legal value is really not significant at all. But do you accept that they have political value?

Barra McGrory: Yes. I am not asking anybody to take a benign view of them. I am simply stating my view as a prosecutor as to whether I consider them to be an impediment to a prosecution, which I don’t.

Q1422   Ian Paisley: I think those comments have been very clear and helpful.

Barra McGrory: That is in terms of their strict legal significance. I understand—

Q1423   Ian Paisley: But do you accept that the letters mean more than what they actually say to the recipient? You certainly did up to a point.

Barra McGrory: Yes.

Q1424   Ian Paisley: With that in mind and your comments today that they have little legal significance, while you would not go as far as advising someone to shred them, you would not—

Barra McGrory: I didn’t use—

Q1425   Ian Paisley: No, while you would not advise someone to go and shred them, you are implying that they are largely worthless from a prosecutorial point of view. Are you suggesting by that that Sinn Fein engaged in a process where they sold their mates a pup? “We’ll get you a letter. You’ll be out of the system. Everything will be all right.” Is that essentially what you guys were participating in and playing?

Barra McGrory: I wasn’t participating in anything. Are you asking me to comment on that?

Q1426   Ian Paisley: Of course I am. I am asking you a straight question. This was a process for Gerry Adams’s mates. Were his mates sold a pup—by Gerry—for political purposes?

Barra McGrory: That’s between him and them, I suppose.

Q1427   Ian Paisley: No, it’s not. Your hands are on this.

Barra McGrory: I don’t know in what terms Mr Adams—

Q1428   Ian Paisley: You are his solicitor. You give him advice. Way back, you were giving him advice. This process emerged. You put the names into the process, and they obviously went to you in good faith. “We’ve got a lawyer on our side. Everything’s hunky-dory here.” Fast forward to today. You have used the words, “little legal significance” and “not entirely worthless”. You have said that the confidence of those who have them should be abated; that they should be aware that they may not still apply; and that the letters are not an impediment to prosecution anyway. You said all those things today, so effectively the people who received those letters have been sold a pup.

Barra McGrory: Circumstances have changed. The letters had probably more significance and more value at the time. They had the political value to the Prime Minister in that they persuaded Sinn Fein to come on board, or stay on board, in terms of the process. In terms of the individuals who received them, they had a value in that they knew at that time that there was no available evidence that could prosecute them at that time, so they made their own decisions on whether they wanted to come into the jurisdiction.

On the third value to the recipient of the letter at that time, the very fact that you got such a letter from the state would suggest that the state was no longer interested in you as a suspect.

Q1429   Ian Paisley: That sounds like snake oil salesmanship, to be perfectly blunt.

Barra McGrory: The circumstances have changed, but I understand what you are saying. I don’t think it is for me to comment on whether people were sold a pup. They were given letters that had value.

Q1430   Ian Paisley: Again, from your point of view as a prosecutor, what would you say these letters are? Would it not be better now for us to clear the deck and have them formally withdrawn by the state? Would that not clear the deck and avoid any abuse of process cases arising?

Barra McGrory: Yes, I think that should be considered, and I believe it is. What is going on at the moment is that each one of those individuals is being re-examined by the police. The police have invested a considerable resource in that. I have met senior police engaged with it at the moment.

Q1431   Ian Paisley: Very finally, Mr Downey was examined by HET for his involvement in the murder of two UDR soldiers in County Fermanagh.

Barra McGrory: Yes.

Q1432   Ian Paisley: As far as I understand, the review of that case was never sent up to the DPP, because they did not believe that it met the evidential test.

Barra McGrory: Yes.

Q1433   Ian Paisley: Given the interest in this, would you have the right to seek those papers and to look at that case separately?

Barra McGrory: We will be. I understand that he police are looking at it and we expect to receive a file. We haven’t got it yet.

Ian Paisley: Thank you.

Q1434   Kate Hoey: Do you think it is sensible and just for your department to be pursuing—presumably at public expense—the Twitter account of one particular resident in Northern Ireland, because they have been saying certain things that may not necessarily be very nice about you?

Barra McGrory: The things that that individual has said about me are not just not nice, but grossly defamatory. They allege that I am personally a terrorist. They damage the administration of justice in this jurisdiction and they damage the office of Director of Public Prosecutions, and I make no apology for any action I have taken in respect of that.

Kate Hoey: We’ll see. Thank you.

Oliver Colvile: Did anybody suggest that you should apply for—

Q1435   Chair: We are not going over that ground again. I want to finish on this one. You quite rightly said that the police are looking at the cases—I think it is 95 cases—of people who have had letters.

Barra McGrory: Yes, a special unit has been set up.

Q1436   Chair: If they find evidence about one or more people, what happens then?

Barra McGrory: We would consider that as a potential prosecution, and if it meets the evidential test, the individual will be prosecuted.

Chair: Mr McGrory, thank you very much for joining us.

Examination of Witness

Witness: Rt Hon Peter Robinson MLA, First Minister, gave evidence.

Q1437   Chair: Order. We are still in public session. First Minister, welcome. I apologise for the delay in inviting you to come in. I have agreed with the First Minister that he can make a brief opening statement. Mr Robinson, over to you.

Peter Robinson: Thank you for the invitation to come along and for the welcome. I very much welcome the opportunity to give evidence about the OTR letter scheme. I welcome the Committee’s decision to hold an inquiry into this matter, which I believe will complement the work being carried out by the Northern Ireland Assembly Justice Committee and that of Lady Justice Hallett.

I have no doubt that when the Hallett inquiry report is published, it will provide significant assistance to your Committee about other issues that you might want to pursue further and people you might want to speak to. It is a matter of some regret that all those who have meaningful evidence to give about the operation of the scheme do not have the confidence to appear before you. I think that is a huge mistake on their part.

Before taking whatever questions the Committee has, it might be useful for me to set out briefly some general thoughts on the issue. My first knowledge of the OTR letter scheme came in the days immediately before the publication of the Downey judgment—two days before, when we were given advance notice. At no point before that had it ever been indicated to me or, to the best of my knowledge, any of my party colleagues that such a scheme was in operation. From evidence already given to your inquiry, that is consistent with what others have said. Of course, that is not surprising. It is clear from the judgment in the Downey case that the leader of Sinn Fein, Gerry Adams, wanted the matter handled as an invisible process.

I was appalled that such a scheme was ever put in place, and equally concerned that it was done in a covert way. The scheme was hatched in the full knowledge that victims could be denied the possibility of justice. It was inequitable, some might say sectarian, a concession to republicans alone. It was deceitful, and was carried out behind the backs of two sets of Unionist negotiators. It involved consciously supplying false assurances and disingenuous answers to direct queries.

The scheme was hidden from Parliament and the people by a careful avoidance of the truth, and, when thought necessary, by deliberate duplicity. It involved withholding essential information from Ministers relating to their duties when the new devolved institution was set up, and more particularly, when policing and justice was devolved. It entailed a studied and wilful silence and a refusal to provide important and relevant information to four of the Northern Ireland political parties during the Haass negotiations dealing with the past. That is why I was so determined that an independent, judge-led inquiry be established and that it report quickly. I was also determined that these letters could not be used by anyone to avoid justice in the future.

On 27 February, the Secretary of State for Northern Ireland gave a welcome, strong and clear commitment on the matter.[7] She said, “We will take whatever steps that are necessary to make clear, to all recipients of letters arising from the administrative scheme, in a manner that will satisfy the courts and public, that any letters issued cannot be relied upon to avoid questioning or prosecution for offences where information or evidence is now or later becomes available.”

It is my intention to hold the Government to that commitment when the Hallett inquiry report is published, if that is deemed to be necessary. The OTR letter scheme and how it was handled will be recorded as a dark chapter in the chronicles of Government conduct. The fact that one of these letters was used to allow someone who was a terrorist suspect to avoid trial represents a deeply damaging blow to the concept of justice. I hope that the findings of this Committee and those of the Hallett report will ensure that there is never a repetition of these events and that the Government fulfil the commitment made by the Secretary of State.

Chair: Thank you very much, Mr Robinson.

Q1438   David Simpson: You are very welcome, Peter. I have to be on my best behaviour today and watch my p’s and q’s.

You briefly touched, in your outline, on your knowledge of the process. You will be aware of various witnesses who have come before the Committee. Allegations have been made that the DUP knew about this. The question by one of our Committee members, Mr Hepburn, referred to Jonathan Powell’s diaries. Mr Hepburn made it clear that the DUP knew about this.

Then, in a witness statement we got from Mr Trimble a couple of weeks ago or just before the recess, he made the same term, that the Powell book was accurate. His words, I think, were, “I have no doubt that the DUP knew about it.” Would you like to put officially on the record exactly what the DUP did know?

Peter Robinson: To a greater or lesser extent, the Powell book was accurate in that it indicated that we had spoken to him about an initiative the Government were considering. It is better to remember that we are talking about the 2004 period. At that stage, the Government were considering bringing in legislation in relation to OTRs. It was entirely in relation to OTR legislation that that discussion took place. Indeed, in Prime Minister Tony Blair’s letter to the then Dr Paisley, now Lord Bannside, on 7 December—I can supply a copy if it is helpful to the Committee—he indicated that it was in particular legislation to address on-the-runs; it was nothing to do with the administrative OTR letter scheme. At no stage did Jonathan Powell or anyone else, during the whole of those negotiations, either with Dr Paisley, myself or the rest of the team, and, I believe, as far as David Trimble is concerned, he or his team, indicate that there was such an OTR letter scheme under way.

Of course, everyone knew that there were on-the-runs, and that it was an issue that Sinn Fein wanted to have resolved in a certain manner. Everyone knew that the Government had conceded—though quite why, I am not sure—that this was an anomaly that had to be addressed. But in the set of negotiations, all of us have dozens of issues that have to be addressed. In this particular case, the Government outlined how they intended to address it.

In 2003, in the document regarding on-the-runs[8] published at the same time as the joint declaration, the Government set out how they intended to address the issue of on-the-runs. It came before the House of Commons. I had high hopes that it would be defeated in the House of Lords. We put down amendments to it and opposed it at every stage during the course. That is what we indicated to Jonathan Powell that we would do if the legislation was brought forward.

Q1439   David Simpson: Do you agree or would your view be that the Government misled the parties through all this process?

Peter Robinson: The Government deliberately deceived the parties. They held back information. On occasions when the matter became a public issue—I recall one occasion when, I think, Gerry Kelly made some public comment and Dr Paisley immediately wrote to the Prime Minister on the issue and received assurances. We asked questions in the House of Commons. We raised the issue at meetings and were consistently assured that, having failed to get legislation through the House of Commons, they were never going to attempt it again and there would be no amnesty. During all of this period, they never indicated that there was a process in the background that had gone on, probably since the Belfast Agreement, and which had been rekindled at a later stage.

Q1440   David Simpson: We are where we are now. What would you like to see being done now? What do you think should be the outcome?

Peter Robinson: The most important issue is that the letters have no legal authority to allow anyone to avoid either questioning or prosecution. I do not think that that matter is clear cut. It is probably a matter that would only be clear cut after there had been a judicial decision on a subsequent letter.

I have to say that anyone suggesting that there is no legal argument existing for a defence counsel to advance on the basis of a letter would be entirely misleading. It will be argued. It will probably be argued that if there was any change from the substance and content of the letter, information should have been given to the client to inform them that there had been a change of circumstances. I don’t know and suspect that no one around this table will know how the courts will deal with that issue.

Q1441   Ian Paisley: Thank you for coming and please excuse me for leaving after my questions. I have to attend the funeral this afternoon of a little boy who died in my constituency.

I want to go back to the issue of whether the Democratic Unionist party had knowledge of this or not. Is it not the political reality that if, as negotiators, the DUP had found out that this was happening, they would have used the political capital that would have emerged from that to have a go at the opposition?

Peter Robinson: I think I need to put into context what that Democratic Unionist position was and is. The Democratic Unionist party opposed the Belfast Agreement. One of the key elements of its opposition was the early release scheme, which effectively allowed prisoners who had been involved in the most heinous crimes to be released after two years. Does anybody think that a scheme that was even more generous to terrorists would be attractive to the Democratic Unionist party? It would be anathema to the DUP—something that we would never have been a part of and we would never have been part of an agreement that had that as a component part.

Q1442   Ian Paisley: What are your hopes for the outcome of Lady Hallett’s judge-led review?

Peter Robinson: The essential issue, as far as I am concerned, is that those who have been victims can hold open the hope that justice will be done and that those who are perpetrators will continue to fear that justice will be done. For that to happen, it has to be absolutely clear that the letters that they have received provide them with no comfort in the future; they are not a way of avoiding questioning or avoiding prosecution. It will be necessary for the Secretary of State to make good on her very clear statement, but I believe she can only do that if there is a subsequent notice—in writing or given in the House of Commons—indicating that those letters will no longer have any impact in terms of any legal proceedings.

Q1443   Ian Paisley: The DPP has made some comments today that the letters are not an impediment to prosecution—that those who have them should be aware that they should not rely on them, that their confidence should be abated and that they are of little legal significance. Does that give you any confidence that they have withered on the vine to some degree?

Peter Robinson: I would be absolutely certain that the DPP, in making those comments, probably prefaced them saying he was speaking as a prosecutor. If the DPP had been speaking as defence counsel, he might have said something entirely different. I do not want to give the impression that lawyers are guns for hire, but they will argue whatever the role is that they are asked to argue. As a prosecutor, I would expect the DPP, or those representing the Public Prosecution Service, to be arguing that the letters have nil effect. However, I think that if the DPP was in his previous role, acting as counsel for representatives of those who held those letters, I am pretty sure that he would be going in with an abuse of process application and arguing it very strenuously.

Q1444   Ian Paisley: The letters should be formally withdrawn then?

Peter Robinson: The letters need to be made null and void. Whatever the process is—whether it is sending a further letter out to indicate that the letters have no impact in terms of any further questioning or prosecution—an action needs to take place. I am looking to Lady Justice Hallett to investigate that matter and to give advice to the Secretary of State on what steps she needs to take to make good the very clear commitment that she has made.

Q1445   Ian Paisley: Finally, how do we rebuild confidence in the process of law and order, which has clearly been damaged in the public mind as a result of this debacle?

Peter Robinson: Damage has been done in three directions. Damage has been done to the policing process—law and order, as you referred to it—to the process of justice and to the political process as well. It needs to be undone and that has to be the first step that is taken. The people must have the confidence that those who have been involved in serious crimes in Northern Ireland in the past will be subject to due process, that they will be brought before the courts, where there is sufficient evidence available, and that the courts will be free to take a decision as to what the sentence should be.

The idea is that there are people who themselves believed—let us not go on the legal niceties: those who were the recipients of these letters believed that those were letters that alerted them to avoid arrest. They wouldn’t have been carrying them round in their pockets if they did not believe that that was the case. I am absolutely certain that they believed that the impact of those letters was such that they would not be brought before the courts.

Q1446   Lady Hermon: So, in effect, they believed they had an amnesty from prosecution.

Peter Robinson: They did. I think that in any abuse of process application, that would be the argument that was advanced. They came back into Northern Ireland because they believed that they had a letter that indicated that they would not be prosecuted.

Q1447   Chair: We discussed this with the DPP a few minutes ago and certainly I was left in some confusion about it. I think you are right, if I may say so, that this really needs to be tested in court before any of us can be certain of how it will end up. The precedent is not good, is it? Mr Downey came to the UK depending on this letter as protection and I am wondering how that would be different for somebody else who did the same. How do we move that forward? That is very difficult to move forward.

Peter Robinson: Well, the Public Prosecution Service will argue that there were some differences in the Downey case in that he shouldn’t have received a letter in the form that it was sent. However, it is very clear that there are sufficient grounds for someone to put forward an application for abuse of process.

I couldn’t judge, and I don’t have the legal expertise to judge, what the courts may decide. I think it would be a mistake if we were to leave it for the courts to decide those issues. I understand that there is probably one case where it may come before the courts. I think it has to be dealt with before it ever gets to the courts and that we need to get whatever advice is necessary, whether from the Attorney-General or elsewhere, to ensure that the Secretary of State or indeed, the Justice Minister—we are not quite clear who holds the responsibility at present, but whoever it is needs to be making a very clear statement to ensure that the courts are under no doubt that the letters do not have the effect of allowing anybody to avoid questioning or prosecution.

Q1448   Lady Hermon: Forgive me for saying so, but when you came in and spoke to us, you seemed really very annoyed about this issue. I think it is helpful for us to have the First Minister of this country in front of us, just to hear how cross you really are about the revelations from the Downey case.

Peter Robinson: I have heard the arguments from Sinn Fein that somehow victims and the political class in Northern Ireland are being, in some way, synthetic about the anger that they are displaying. This is something that goes to the very heart of our society. We have people who have suffered immensely as a result of decades of terrorism in Northern Ireland. Many of them personally still have the scars of that terrorism upon them. Others have lost loved ones.

Here we have a set of circumstances where those who believe themselves to be the perpetrators, and having fleed the country because of that feeling of guilt, have received letters which effectively indicate that they will not be subject to the due process of the law. That is, in my view, something that no Government should ever have been involved in, but to have done it in a one-sided way, secretly, behind the backs of Parliament and the people, having not informed those who took over responsibility for policing and justice, and having not informed those of us who are trying to work out how best we could get justice through a negotiating process under Haass—dealing with the past and not being aware of a key and vital component of all of that—of course, I am very angry about it, and I think that is reflected within the community in Northern Ireland. 

Q1449   Lady Hermon: Yes, I agree entirely and wholeheartedly with that. How damaging has this been for confidence in, for example, your Deputy First Minister—your confidence in your Deputy?

Peter Robinson: I suppose I always expect republicans to behave like republicans. I do not expect them to do things in the interests of a wider community. I have consistently watched that their first priority has always been to their own membership—after that to their support base, and after that, to the people of Northern Ireland.

Q1450   Lady Hermon: So, on one part, it did not exactly surprise you that, in fact, they had been able to do this little secret deal. So how damaging has it been for your confidence in the Secretary of State for Northern Ireland—and more to the point, the Prime Minister and the coalition Government who came in in 2010, after the devolution of policing and justice, but continued with this secret little scheme for four years after the devolution of policing and justice? How damaging has it been for your confidence and trust in the Prime Minister and the Secretary of State?

Peter Robinson: I do not know whether it is in the genes of members of the Democratic Unionist party, but when we go into negotiations, our inclination is not to trust anybody and to make sure that we dot every i and cross every t ourselves. That is why, throughout all the processes that we have been involved in, if we hear through sources or through the press, we always ask the questions, and we did consistently. There are a number of letters where we were asking the Prime Minister at the time about suggestions that were being made. We were being given assurances, and unless you have the evidence, you cannot challenge it.

The evidence came too late in this case, but of course, it damages the trust and makes one more alert in the future if people make commitments and indicate that there are no side deals or that such and such a party has not been pressing on various issues. We will always be alert, but no political party in Northern Ireland is immune from the possibility that there are other issues at play in the process, and we are all alert to it.

Q1451   Lady Hermon: So Sinn Fein would claim that the DPP—sorry, not the DPP, but actually, well, the DPP did know. It would claim that the DUP knew about the scheme—that is absolutely untrue.

Peter Robinson: It is totally untrue. They have never provided any evidence to support their claim. It is an attempt, if you like, to remove the focus from themselves. There is no evidence, nor could there be, that the Democratic Unionist party was aware of this scheme. It came as a complete surprise and a bolt from the blue on, I think, the Sunday before the publication of the Downey judgment.

Q1452   Lady Hermon: Did you phone No. 10? Did you speak to the Prime Minister to vent your anger and to convey your annoyance that, as the First Minister of this country, you had no awareness of this scheme that had been operated for such a long period of time?

Peter Robinson: The first person I probably spoke to was the Justice Minister, because I wanted to satisfy myself that he knew nothing about it. I contacted the Secretary of State and later spoke to the Prime Minister about the issue.

Q1453   Lady Hermon: How did he reassure you? Did he attempt to reassure you? I do not want the details of the conversation, obviously, but did he attempt to reassure you and, if so, how?

Peter Robinson: The Prime Minister’s view is that which is largely held by the Government—that the letters were simply a statement of fact at that moment in time. However, I think that the Downey judgment raises sufficient issues to indicate that it has the potential of re-occurring and, as such, I think that has to be dealt with. That is why I insisted on the judge-led inquiry, which allowed us to look at who knew what and when. I was particularly keen that that would be done so that a judicial inquiry—I welcome the fact that this inquiry is taking place—can satisfy themselves that there is no evidence to suggest that even the Ulster Unionists knew, or the Democratic Unionist party because, don’t forget—

Q1454   Lady Hermon: Neither the Ulster Unionists—I think I was a member of the Ulster Unionist party at the time.

Peter Robinson: I have no evidence to suggest that they were aware of it during the period when it was taking place, in the period from the Belfast Agreement right through to when we took over responsibility in 2007 or, indeed, when we became the largest party in November 2003.

Q1455   Lady Hermon: So when Lord Trimble tries to suggest to the Committee that the DUP did know but tried to blame it on David Trimble and the Ulster Unionists, that is not true either?

Peter Robinson: The letter makes it very clear that it happened during the time of his leadership of the Ulster Unionist party. I do not make any claim that he knew about it. I am aware from some other evidence that it was discussed at a meeting at Hillsborough when the Ulster Unionist party was present, but there is no evidence to suggest that they agreed with the proposition or supported it in any way.

Q1456   Lady Hermon: They absolutely did not know about the scheme.

Peter Robinson: Let’s be very clear: the discussion was in relation to OTRs as opposed to the letter scheme.

Q1457   Lady Hermon: Yes. It was a discussion about the so-called anomaly, but it was nothing to do with the scheme. Lord Trimble and the Ulster Unionists knew nothing about the scheme.

Peter Robinson: I have no evidence that any Unionist or, indeed, any of the Alliance or the SDLP, were aware. I have no evidence of that.

Q1458   Lady Hermon: Absolutely. Moving on to Lady Justice Hallett’s report—you were very keen to have that inquiry set up very quickly and it was. Have you got a clear indication of when that report will be published? The first indication was the end of May but I think it was then moved back to the end of June. Have you been given an indication, as the First Minister, of when to expect the publication of her report?

Peter Robinson: Maybe before I answer that directly, as I will, I should indicate that you are right: I did want an inquiry to take place and to take place quickly for precisely the reason that, one by one, cases may come forward that people will be using the abuse of process argument. I feel it is therefore necessary for it to be dealt with quickly. It is a dilemma that anyone would have had in my position. If you go for a full, public Saville-type inquiry, you are talking about a decade before you are going to get an outcome.

Indeed, even in a lesser form, any full public inquiry is going to take years. We did not have that length of time before cases would come before the courts. That is why I felt it had to be an independent, judge-led inquiry, but it had to be such that it could report quickly so that corrective measures could be taken. As far as Lady Justice Hallett is concerned, I met with her, I believe, towards the end of last month. On that occasion, she hoped that somewhere around the middle of this month to be in a position to provide the Secretary of State with her report so that the Secretary of State would be able to publish it before the end of the month.

Q1459   Lady Hermon: After her appointment had been announced, were you concerned that the director general of the Northern Ireland Office, Julian King, had indicated—publicly, I believe—that Lady Justice Hallett was not expected to look at all of the cases, but would in fact look at a sample of the cases? Did that concern you?

Peter Robinson: I think we need to remember that we are not just talking about the number of cases for which there are letters, because each of the letters can have a multiplicity of cases referenced to them. Therefore, it would have been a very intensive job for the judge to carry out. However, the police are carrying out that function. Lady Justice Hallett is monitoring that process by taking samples to ensure that the outcome is consistent with her view of the evidence that is available.

You mentioned the permanent secretary. I wanted a short process, but I did not want the judge to be constrained to a particular time frame. I understand that the Lord Chief Justice, in releasing Lady Justice Hallett to carry out the work, was concerned about the length of time that it might take. It was largely constraints from the Lord Chief Justice that determined the time.

Q1460   Lady Hermon: So, if Operation Redfield, which is now being conducted by the PSNI, takes two to three years to look at each of the OTR letters, does that length of time concern you?

Peter Robinson: We need to remember that any determination of whether sufficient evidence is available for the DPP to instruct a prosecution to take place is a moving feast. The PSNI looking at a case today might find that their ducks are not all in a row, but with the advance of technology and the possibility of new evidence coming forward—even confessions, I would say—all of that can change. Therefore, it has to be an ongoing process of review, and not something that they do over the next few months and leave it there.

Lady Hermon: Thank you so much.

Chair: Thank you.

Q1461   Naomi Long: The OTR issue was obviously a significant one throughout the early part of the talks process—at Weston Park, Leeds Castle and so on—but then it dropped off the radar. What did you think had happened with the OTR issue when it stopped being raised in the talks?

Peter Robinson: The Government had set out very clearly how they intended to deal with it—they intended to deal with it through a legislative process. They failed to get the necessary support. I suppose it is worth just putting in a note on why it failed, because I think the reasons are appalling and say a lot about Sinn Fein’s belief in equality. Sinn Fein withdrew their support for the legislation not because they felt that there was anything damaging to themselves as far as their own support base might be concerned, but because members of the security forces might be able to avail themselves of the same generosity that the Government were willing to provide Sinn Fein. That is absolutely appalling. They were saying, “Allow our volunteers to have an effective amnesty, but no such thing should happen to members of the security forces or indeed those in the RUC or PSNI.”

However, on what I thought had happened, as with the dozens of issues that we wanted to be addressed that were not addressed, we assumed that, having failed, the Government did not intend to proceed. We asked questions in writing and verbally and were told that they would not attempt to bring in new legislation and that there would be no amnesty. I specifically asked whether any other process was under way. I asked that in the House of Commons.

I believe that the reply I got was, at best, an attempt to mislead the House and me—it was indicated that there was no other process, when, in fact, hundreds of people by that stage had applied for letters and certainly dozens had already received letters. Lady Hermon put down a question and I believe was very deliberately misled in the answer she received. While we were aware that the legislation had failed, we continued to ask questions about the matter and received correspondence that confirmed that there would be no further legislation nor amnesty as far as on-the-runs were concerned.

Q1462   Naomi Long: Were you surprised that Sinn Fein just gave up on the issue then?

Peter Robinson: No, I wasn’t, and we wrote some of our letters because we were hearing that Sinn Fein were still pushing the issue. I suspect that Sinn Fein would have desired to have an amnesty. They, as part of their process of rewriting history, would like to have the impression out there that somehow the killings in which they were involved were part of a war, and that after the conflict is over somehow a line should be drawn under them. I do not take that view. We continued to press the Government on the issue and I believe we were deliberately misled.

Q1463   Naomi Long: Were you surprised it did not come up again, for example in St Andrews, and was not pushed there by Sinn Fein?

Peter Robinson: This is one of the difficulties. Nobody is quite sure what Sinn Fein were pressing during the course of St Andrews.

Q1464   Naomi Long: It was not pressed with you, perhaps; either raised with you by the Government or by Sinn Fein. Was that a surprise to you, or was it simply something that you just took for granted, that because of the Government’s position on it they had just walked away from that completely?

Peter Robinson: Well, I would not have been surprised if they had been pushing the issue. The fact that it was not in the St Andrews agreement indicated that the Government were not taking any steps on the matter, and that indicated to us that whatever they had raised during the course of the negotiations, the Government had not conceded it to them.

Q1465   Naomi Long: So when people started to return to Northern Ireland—and there were a number of people who did return, and there were obviously issues about it in the press—what did you think were the grounds for them? Did you think they were returning just at their own risk, or were you curious, I suppose, as to how come those individuals were able to be in Northern Ireland and not arrested or charged?

Peter Robinson: Some of those who returned—it is another issue and I do not know the extent to which the Committee is looking at it—some of them returned under the royal prerogative of mercy. There are serious questions to be asked about how the RPM was used during that period and what justification there was for people to be given it, leaving aside the irony of Republicans looking for the royal prerogative of mercy; but people came back under the auspices of the RPM. I assumed—I think we were entitled to assume—that anybody else who was coming back was coming back on the basis that they were taking a risk at coming back; that they did not believe that the police had sufficient evidence against them.

Naomi Long: With respect to the John Downey letter, in particular, we received evidence from the then Secretary of State, Shaun Woodward,[9] who painted a picture of devolution in 2007 as incredibly fragile, and as in crisis, and that the issuing of the letter to John Downey and indeed to others was absolutely crucial in order to copper-fasten devolution at a time when it was extremely wobbly. I confess that is not my recollection of 2007, but I would be interested in your recollection of 2007 and whether you felt the process was especially wobbly at that point in time.

Peter Robinson: No, it was not. In 2007 there were very high hopes about the new era that we were entering into, although I am not at all surprised that the then Secretary of State might have felt that was the case, because it has always been a part of the Sinn Fein strategy to tell anybody who can take a decision that is helpful to them about how they are facing great difficulties and that there will dire consequences if various things do not happen. That has been part of the Sinn Fein play throughout the whole of this process. They always play up their difficulties in the hope that people will attempt to accommodate their difficulty.

Q1466   Naomi Long: In terms of the NIO, we have had—you have had, personally, conflicting answers to questions that you have posed. The entire outworking of this has, I think, been littered with errors in terms of numbers of cases processed, added to and changed, and so on. Do you have confidence in the NIO at an administrative level and in its knowing what it was doing throughout that period, including being able to keep sufficient records?

Peter Robinson: I think that there are certainly people who have the competence to do it, but I suspect that the momentum within the NIO was to satisfy Sinn Fein and meet its demands and get things done quickly. I suspect that the political desires of some within the NIO probably had a greater impact on rushing things through, not thoroughly thought out or recorded, than anything else. There was this massive desire to satisfy Sinn Fein, and to do it quickly.

Indeed, I suspect that the legislation was being sought—because don’t forget that the letters, we now know, were being sent out before the legislation was brought forward. The legislation itself was being brought forward, in my view, because Sinn Fein was not satisfied with the speed with which the OTR letter scheme was operating and they wanted to get everybody through in one fell swoop.

Q1467   Naomi Long: The Secretary of State had said that the scheme ended in 2012. The NIO then confirmed on 28 February that there were five cases still in the system. Sinn Fein has claimed, in their evidence to the Committee,[10] that three cases have been dealt with this calendar year. Do you have any confidence at all in the information that we get from the Northern Ireland Office on this issue? Do you trust the Northern Ireland Office at this point—or at any point?

Peter Robinson: I am reluctant to get to the issue of trust again; I want to make it clear—

Q1468   Naomi Long: I am very clear that you do.

Peter Robinson: There are many people in the Northern Ireland Office who I believe are genuine. There are clearly those who are disseminating information in terms of what they feel it is necessary for people to hear at a given moment in time. The facts that we were given have been changed on a number of occasions—or maybe that means that they weren’t facts—and the figures and information that we were given have changed from time to time. There is no question but that that is so.

I have a further concern about the Northern Ireland Office: I am not convinced that it should legally have any role in the issue at all, at the present time—nor should they have had from 2010. I believe that that function should have passed to the Department of Justice in Northern Ireland.

Q1469   Naomi Long: That is a concern that I think we have explored as a Committee and would share.

I am interested, though, in the three cases that Sinn Fein alleges have been dealt with this year. The Secretary of State has said clearly that the scheme stopped in 2012. They have admitted that there were five cases in their purview still live, but they had not said that they were going to process those cases. If those three cases have been processed, do you believe it is possible that that could have done without the knowledge or agreement of the Secretary of State?

Peter Robinson: It certainly should not have been. I do not think that I can throw any light on the issue. It is a matter I am sure the Secretary of State will want to speak about and I am sure that you will take evidence on the issue. I will await with interest what responses you get, but I do not think that I can help you with what is going on in the Northern Ireland Office—it is a mystery to me.

Q1470   Naomi Long: Do you believe Sinn Fein when they say that those three cases have been dealt with?

Peter Robinson: Well, they have put it on the public record, so it has to be dealt with by the Northern Ireland Office. I cannot but think that there must be something in relation to three cases. Whether there is some obfuscation about the wording that is used, I do not know. I think we would need to look at that in more detail. I cannot help you on the issue.

Q1471   Naomi Long: Have you sought any information directly from the Northern Ireland Office with respect to the content of the letters themselves?

Peter Robinson: Yes, I have talked to the Secretary of State about the content. At the very first meeting I had after the revelation, I spoke to the Secretary of State about the content of the letters and, indeed, the number of letters that were sent out. Figures are very different now from the figures I was given then, but yes, I have.

Q1472   Naomi Long: Have you had the opportunity to see any of the letters?

Peter Robinson: Not physically, no. I have seen both online what is suggested to be the content. I think I read in evidence that you were given what a former Secretary of State indicated was the content of the letter. I have seen a BBC report indicating what the content of the letter was and I have heard what the Secretary of State has had to say.

Q1473   Naomi Long: Have you asked to see any of the letters?

Peter Robinson: No.

Q1474   Oliver Colvile: Why not?

Peter Robinson: I suspect that is a task that Lady Justice Hallett will undertake and, I suspect, reveal.

Q1475   Chair: Mr Robinson, you referred to the Bill that was introduced in 2005; I think we served together on the Committee. We have since found out that there was a draft Bill, drawn up in 2001. Dr Reid has confirmed that in letters that we have seen.[11] Presumably, you did not know about that then.

Peter Robinson: I have to say that I missed the report of 2001. I was not aware of it until you just pointed it out to me. I suspect it must have been materially similar to the 2005 Bill but I have no knowledge of it.

Q1476   Nigel Mills: Mr Robinson, you were asked whether you were a little surprised that people who were on the run were returning. You mentioned that you thought some had got a royal prerogative of mercy. Was that something that you were thinking on an ongoing basis over the past few years or was that something that you only just started thinking after all this came out this year?

Peter Robinson: This is an issue of media revisionism. All of the issues—whether you are dealing with Dr Reid’s remarks, Jonathan Powell’s book, what happened on the policing board or issues relating to press statements by Sinn Fein and others—were public issues. Everybody would have been aware of those issues. The press were not aware of an OTR letter scheme so they cannot expect that any of the politicians outside of Sinn Fein and the Government would have been aware of it either. It was not front-page headlines that someone who was a suspect had returned to Northern Ireland or to the UK more generally. That was never the way and there was no real discussion about those issues at all.

Q1477   Nigel Mills: Were you aware that some—several hundred—RPMs had been issued over the past however many years?

Peter Robinson: That one stunned me. I did ask questions immediately. I think it was in response to a question put down by Kate Hoey[12]. I was told that only a handful of these were terrorist-related and I think we probably have the names of those that were terrorist-related on the basis of, I think, an article in one of the Irish newspapers some years ago. The rest, I am told by the Secretary of State, relate to matters from motoring offences down. I was promised I would be given a breakdown; I think I was promised about a month ago. I am still waiting for that breakdown.

Q1478   Nigel Mills: A breakdown of the nature of offence that the RPMs were issued for or a breakdown of who has received them?

Peter Robinson: There was no public announcement of the RPMs in Northern Ireland. If there had been, a lot of questions would have been asked at the time. As I understand it, it is normal for such use of the royal prerogative of mercy to be published in the Belfast Gazette or something akin to it. None of us were aware of it outside of, I think, one reporter, who indicated that a number of individuals—I think he said 10 or 14—had been successful in receiving the royal prerogative of mercy.

Q1479   Nigel Mills: You think the names of these people, certainly who have received terrorist-related ones, should be duly published so everyone knows who has received one of these?

Peter Robinson: I take the view that anybody who has been convicted of a terrorist offence should still be in prison serving the sentence that the courts laid down to them. If, however, an exercise of the royal prerogative of mercy ensues, certainly it should be public knowledge. Of course it should be public knowledge and the reasons for it should be public knowledge as well.

Q1480   Oliver Colvile: Thank you for coming to see us. It has been very useful. Earlier on, you said that you knew nothing at all about any of these letters until it became apparent when the trial collapsed. Yes?

Peter Robinson: Two days, I think it was. On the Sunday before the publication, a copy of the judgment was sent to me.

Q1481   Oliver Colvile: I seem to remember, though, that when Mr Downey came back into this country and was arrested at Gatwick airport on 19 May 2013, he made it quite apparent that he had got some letters. Did you never think to ask anyone about what those might be?

Peter Robinson: I cannot even recall Mr Downey coming into the UK at that stage.

Q1482   Oliver Colvile: Forgive me, but it was a very big story on the national news at the time. I have a pretty appalling memory normally, but I remember it happening. It seems, to my mind, that people forgot to actually do anything about it when it happened.

Peter Robinson: I do not think anyone would have been entitled to think, even if they had heard that he was in possession of some letters, that there was a scheme under way that provided people with some letters of comfort. Anyone who had heard that would have probably been mystified as to what exactly he was talking about.

Q1483   Oliver Colvile: If they had done so, was there no one in your press office who might have actually asked that question?

Peter Robinson: It was never drawn to my attention.

Lady Hermon: I am just making a comment in relation to the royal prerogative of mercy, following Nigel’s questions to you. The DPP, Mr Barra McGrory, very kindly provided us this morning with a review of all the files that have been held by the director of public prosecutions in relation to OTRs. In paragraph 30,[13] it says in relation to OTRs that “by April 2010, 13 had received the royal prerogative of mercy and eight remained under review. It should be noted that the DPP was not involved in the process of consideration of the exercise of the royal prerogative of mercy.” Those are just figures about a small number of OTRs getting it—it is only a comment.

Q1484   Kate Hoey: Any independent person listening to all our evidence over the last few weeks will have observed that this has been a very one-sided process in terms of the letters. We know that. Looking to the future—I think it was announced just yesterday that the three parties are coming together again to further the Haass talks. Is that right, or did I not pick that up on the BBC last night?

Peter Robinson: We have consistently been meeting as party leaders since the Haass process was completed, so it is a continuation of a process.

Q1485   Kate Hoey: Is there any realistic prospect of getting any of the issues Haass was dealing with, when so much of it is down to trust, openness and honesty and when we cannot yet get to the bottom of something like this, which has been so damaging to public confidence in the justice system and law and order? Realistically, the Prime Minister goes on all the time about moving things forward and the Secretary of State talks about moving things forward in Northern Ireland, but in a way they have a lot to be blamed for in terms of this process and how it has got to where we are with transparency.

Peter Robinson: It would be a very rash person who would rush down to the bookies to put on a bet that the new set of talks was going to be successful, because all the difficulties that you outline are there. Indeed, my party have made it clear that, in terms of dealing with the past, we will not commence negotiations on those issues until we have the outcome of the Hallett inquiry. We need to know what circumstances we are facing before we negotiate that set of circumstances and, indeed, feel very sore that during the Haass process, we were in negotiations day and night about the past and were never told that such letters were in the hands of those who were suspects. From that point of view, the process cannot go on until we have the outcome of the Hallett review on the OTR letters scheme. Those are the difficulties, but they do not stop politicians continuing to work to try to resolve those issues. Trust is in short supply, particularly when we learn that things were going on behind our back. Even at a later stage when we were dealing with those issues, nobody thought it proper to inform us.

Q1486   Kate Hoey: Do you every feel despair at the attitude of many people in the UK Parliament and the media, who constantly say, “Why don’t these people get real? Life’s moved on. Why don’t they just forget it all?”? We listened to the victims yesterday, and it was incredibly moving. Does it frustrate you that senior politicians from all parties do not really get it, in terms of what the history of Northern Ireland has led to?

Peter Robinson: It is not as if we are dealing with far distant history. It is part of the lives of people who are living in Northern Ireland at the present time. It is very frustrating that there is an expectation that we should draw a line, forget it all, move on and not acknowledge that there are people who are hurting and are still looking for justice and truth. There are still people who have refused to apologise for the role they played in the misery that was inflicted on so many people in Northern Ireland.

Q1487   Kate Hoey: Finally, Mr McGrory did not give an immediate answer, but he said he would look into giving the Committee the names of all those who have been sent letters. He, of course, knows them and has seen them, as has Gerry Adams and most people in senior positions, apart from yourself and the other political parties. The public has not seen them. Do you think it would be a good idea for this Committee to see the whole list?

Peter Robinson: My instinct is to say yes, but with one caveat. I had a discussion on that issue with Lady Justice Hallett, and she pointed out that there is a concern that that in itself could be the basis of an abuse of process application. The last thing any of us wants to do to satisfy our own curiosity is to allow somebody to escape justice.

Q1488   Kate Hoey: One final question, which people raise with me all the time: do you think any agreement was made at any of the various conferences over the years that the senior members of Sinn Fein would never be prosecuted? I am not expecting you to have known about that, but do you think there could have been something that said, “Gerry Adams, Martin McGuinness, Gerry Kelly, don’t worry. We’ll never take you to do anything”?

Peter Robinson: There certainly is that suspicion. It isn’t grounded on evidence that such an undertaking was given to them, but it is fuelled by some events that indicate that they certainly should have been questioned at various times. It arises out of the murder of Frank Hegarty and in relation to the McConville issue—one has to wonder why it has taken such a long time to question Mr Adams about that. A considerable amount of circumstantial evidence was provided in “The Cook Report” on the Frank Hegarty murder and how he was inveigled into coming back to Northern Ireland by Martin McGuinness. Mrs Hegarty herself indicated that he got down on his knees and pleaded with her to bring her son back. Of course, when he came back, he was taken and left dead in a cold, wet lane in the Irish Republic. Now, that may not be enough to prosecute, but it is certainly enough to ask questions.

Q1489   Naomi Long: We spoke earlier about the knowledge of process and what people thought was happening. In the Northern Ireland Policing Board, questions were asked about the issue of OTRs. Tom Buchanan from your party pursued this issue at the time. A letter was written to him on 20 April 2010,[14] which set out a process; it did not mention letters, but it did set out a process. It talks about the fact that 218 names have been considered; each individual case evaluated and reviewed; and then referred to the Public Prosecution Service if appropriate. It set out that 173 of those were not wanted; eight returned to prison; and 11 remain wanted—basically, it set out that process.

Can I just be clear? In terms of your knowledge of a process, were you aware of that process? Was it simply the issue of letters that you were unaware of, or were you not aware of any process at that point in time?

Peter Robinson: You and I would have both been aware that the OTR issue was an issue that Sinn Fein was seeking to be resolved. You and I would both have been aware of the public comments made in the policing board—

Q1490   Naomi Long: No, because we had no representatives on the policing board at the time.

Peter Robinson: But this was a public meeting.

Q1491   Naomi Long: But we would not have had the detailed papers either.

Peter Robinson: This was a public meeting that was reported.

Q1492   Naomi Long: No, this is a letter.

Peter Robinson: There is nothing in the letter that was not said during the public meeting. Everybody, the press included, was aware that the police were reviewing their files, as indeed the police should on a regular basis to see whether there was a basis for prosecutions to take place, or whether that was for an extradition application, or for whatever. But there was no indication that letters were being given. Indeed, as I understand it, the police, when giving evidence to this Committee, indicated that they did not know that there was an administrative OTR letters scheme. If they, the ones who were carrying out the investigation, did not know, I do not think that you or I could be blamed for not knowing.

Q1493   Naomi Long: The question I am asking is, is it the letters specifically that you were unaware of, and the process was different, or was it the entire process that you were unaware of? I am just trying to get clarity on that for the sake of the record.

Peter Robinson: It is about the letters. It is the letters that were used in order for Mr Downey to escape trial. That is the key issue. Whether the police review files—they can do that every day from now until eternity—does not affect the judicial outcomes. But if someone provides a letter that is seen to be an indication that prosecution will not take place, then that is a very different issue.

Q1494   Naomi Long: In terms of what happened at the policing board, the perception that, certainly, I had of the discussion—I would be interested to know you viewed it—was a reassurance being given to members of the policing board that ongoing investigations were continuing into all those cases, as opposed to any disclosure about there being a scheme to deal with OTRs specifically. Was that your understanding of what was discussed at the policing board at the time?

Peter Robinson: It is what was discussed at the policing board at the time. The fact that it was Tom Buchanan who was asking the question would indicate that he was seeking assurance that there was an ongoing process to bring people to justice.

I encourage the police to look at the evidence that they have against individuals to see whether they have the basis upon which they can take a prosecution. Quite frankly, in many of these cases, it will depend on who is looking at the evidence as to whether they think it is sufficient to hand it up to the Public Prosecution Service. In some cases, it will depend on who is looking at it in the PPS as to whether they think it is appropriate for a case to begin.

From that point of view, it is important that there is an ongoing process of reviewing files for those, whether on the run or not on the run but are still in Northern Ireland.

Q1495   Naomi Long: Were you at all surprised with the proportion of people who were deemed not wanted after that process? There were 218 names in the letter, 173 of whom were deemed not wanted. Did you find that a high proportion of people who had bothered to go on the run, if they were not wanted?

Peter Robinson: I think anybody would be surprised that people go on the run if they have nothing to worry about.

Chair: We will have to leave it there. Mr Robinson, thank you very much for joining us. It has been very useful.

Oral evidence: Administrative scheme for ‘on-the-runs’, HC 177              64