The case is almost a replica of the controversy surrounding John Downey, the alleged IRA bomber, whose trial on murder charges arising from the 1982 Hyde Park bombing collapsed when his lawyers argued successfully that the ‘comfort letter’ he had received protected him from prosecution.
It emerged later that Downey’s ‘comfort letter’ had been issued by mistake since he was wanted by British police when it was issued and the affair has pitched the legal and political authorities in Britain into an embarrassing controversy, while the Cameron government’s decision to set the other ‘comfort letters’ aside has raised charges that the British are reneging on an important agreement made during the peace process negotiations with Sinn Fein.
Sixty-seven year old Michael Burns from North Belfast has terminal COPD, a progressive lung disease which makes it harder to breathe with age, and is now receiving palliative care, which means that doctors have effectively given up hope of reversing the disease and are now focusing on making his final days comfortable.
Sources familiar with the case say that the prosecuting authorities have refused to consider dropping the case on health grounds even though Burns may not live long enough for a trial to happen.
His lawyers intend to challenge the DPP’s claim, which essentially revolves around the question of whether the PSNI made a mistake when Burns was issued with one of the so-called ‘comfort letters’ and what they should have done once they realised a mistake had been made.
They will maintain at a hearing scheduled for mid-April in the Belfast High Court that withdrawing the ‘comfort letter’ now, over a decade after it was issued and long after they realised it had been issued in error, amounts to an abuse of process by the North’s legal authorities. The authorities’ failure to act once the mistake had been identified means that the letter should stand and that Burns should not be charged or tried.
The North’s DPP, Barra McGrory will, it is understood, counter-argue that Burns should never have received a ‘comfort letter’ in the first place because he was wanted by the police in Belfast when it was issued and that therefore the letter had no standing.
It is not clear just whether this case will set a precedent for others who received the ‘comfort letters’ since the letter issued to Michael Burns was one of three that the authorities now claim were issued by mistake. Nonetheless it is likely to have an impact on the growing controversy surrounding the matter with concern growing that it could have an adverse impact on the peace process.
As far as the other 225 letters are concerned the Cameron government, boosted by a recent House of Commons committee report, has withdrawn them and asserted that they are legally worthless.
As reports emerge of further possible PSNI and British police action against those issued with the letters, dissident republicans are likely to argue that the British have reneged on an important part of the peace deal and that Sinn Fein is powerless to stop them. So far Sinn Fein has remained silent about the affair, at least in public.
The ‘comfort letter’ issued to Michael Burns was sent to him on June 18th, 2003 and like the other 227 letters said that there were no warrants out in his name, that he was not wanted by the police in Northern Ireland for arrest, questioning or charge.
Burns had been living south of the Border since 1977 when he left Belfast after an apparent shooting incident. Not long after his move he was arrested and convicted for an armed robbery and served eleven years in the republican wing of Portlaoise jail.
During this time the RUC applied for his extradition on charges of attempted murder and possession of a firearm with intent to endanger life, an offence which the Northern authorities say happened in 1977. The extradition bid was refused and when he was released he remained south of the Border until the ‘comfort letter’ was issued to him, after which he returned to his native north Belfast.
Sources familiar with the case say that the PSNI moved against Michael Burns, arresting him and charging him with attempted murder and firearms offences, before the trial of John Downey collapsed in February 2014. Confirmation of this claim has proved elusive but if true this suggests that the moves against John Downey and Michael Burns may have been part of a strategy to undermine the ‘comfort letters’ rather than a coincidence.
Movement in the case against Michael Burns has been delayed thanks to a lengthy wrangle between his lawyers and the legal aid authorities in Belfast over payments to barristers involved in the abuse of process action. The legal aid officials refused to award a payment commensurate with the complex task of preparing legal arguments and no barrister at the Bar Library would take the case on.
Burns’ lawyers sought a judicial review of the legal aid decision and last week Mr Justice Treacy ruled in Burns’ favour, thereby opening the door to what will be a closely-watched tussle in the never-ending controversy over the ‘On-The-Run’ letters.
Whether Michael Burns will still be around when it happens is, though, another question.
(My thanks to Peter Sefton who tipped me off about this story and was the first to blog about it.)