Wednesday, December 7, 2016

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CMPs: Propensity Of The Intelligence Character

Christy Walsh follows up on his earlier writings on Closed Material Procedure.

[T]he law should be used as just another weapon in the government’s arsenal, and in this case it becomes little more than a propaganda cover for the disposal of unwanted members of the public -
Senior Intelligence Officer and Advisor, General, Sir Frank Kitson (Retd)
[1]

On every occasion that the conduct of intelligence agencies have come under some form of public scrutiny they are invariably seen to have acted with impropriety and dishonesty, if not unlawfully.

The purpose of this article is to highlight the dangers to the administration of justice where unchallengeable secret evidence becomes the only evidence upon which judicial decisions are made.

The Office of the Police Ombudsman for Northern Ireland (OPONI) was established under the terms of the 1998 Good Friday Agreement and became operational in 2000. A number of its investigative reports have shed light on the strategies and operational practices of intelligence officers in both the gathering and use of intelligence material; including a readiness to mislead the court on the quality of its material and the integrity of its sources.

In 2007, after an investigation into the intelligence services use of informers who were the prime suspects in a number of murders in North Belfast during the Conflict, the OPONI established that intelligence officer’s suppressed intelligence about “informants who had allegedly been involved in the planting of a bomb”.[2] One informant suspected of multiple murders escaped prosecution, for a drugs related charge, after an intelligence officer asked the Prosecutor to excuse the informant “due to unavoidable and unfortunate circumstances which were not under his control”.[3] OPONI further concluded in relation to an attempted murder by the same informant that:
A misleading and inaccurate confidential document was prepared for submission to the Director of Public Prosecutions which failed to mention that Informant 1 was suspected of involvement in numerous murders and other serious criminality.[4]
The OPONI investigated sensitive intelligence related to the Omagh Bomb attack, on 15 August 1998, which killed 29 people and injured 220 others. The OPONI concluded that: “It will never be known whether or not the bombing of Omagh could have been prevented.”[5] In the hunt for the perpetrators the OPONI complained that the Intelligence Services withheld “significant intelligence” from investigators, such that their disclosure “would have had the potential to make a difference to the outcome of the investigation of the Omagh Bomb.”[6]

An Irish Oireachtas (Parliamentary) Joint Committee considered complicity of British Intelligence Services’ in the 1974 Dublin and Monaghan bombings which killed 33 civilians and injured around 300 others. The Committee concluded in 2004 that: “A number of those suspected for the bombings were reliably said to have had relationships with British intelligence and/or RUC Special Branch officers.”[7]

On 12th December 2012, Sir Desmond de Silva, appointed to review the murder of Belfast Solicitor Pat Finucane, published his final Report (Note[8]). De Silva found evidence that the Intelligence Service’s had been engaged in propaganda initiatives encompassing the dissemination of information designed to target IRA suspects,[9] such that, Mr Finucane came to be included within the scope of the propaganda.[10] De Silva could only speculate in his Review that the Intelligence Services had only intended to “'unnerve’” Mr Finucane rather than have him killed.[11]

In a judicial review by Mr Finucane’s family, Stephens J, acknowledged, in June 2015, that the Intelligence Services’ had colluded to ensure Loyalist Paramilitaries carried out murders of UK citizens considered to be “proper” and not sectarian: 

In effect that Brian Nelson was tasked to focus UDA targeting on Provisional IRA activists.

(a) 4 August 1988. “(Nelson’s) appointment enables him to make sure that sectarian killings are not carried out but that proper targeting of PIRA members takes place prior to any shooting.[12]

In his book State Violence, Collusion and the Troubles: Counter Insurgency, Government Deviance and Northern Ireland, Maurice Punch, draws from the OPONI’s findings to demonstrate the dangers of trusting “specialist intelligence department with extensive and uncontrolled powers.”[13]

What Svendsen refers to as ‘Bureaucratic Pressure Theories’, colloquially known as ‘dirty tricks’, which can have real damaging consequences on peoples’ lives. For example, on 28th July 2015 Lord Justice Pitchford[14] Launched The Undercover Policing Inquiry:

To inquire into and report on undercover police operations conducted by English and Welsh police forces in England and Wales since 1968 and, … their effect upon individuals in particular and the public in general.[15]


The alleged tactics the Pitchford Inquiry will investigate will include operatives using the identities of dead children to conceal their own identity, and, their having intimate relationships with their unwitting surveillance target so as to win their trust and not arouse suspicion that they are, in some cases, spying on the mother of their own ‘spook’ children. Misconduct of undercover officers had been “unfairly buried in the legal proceedings” resulting in more than 50 protesters being wrongly convicted or prosecuted; “That total may however increase as other potential miscarriages of justice are still being examined”.[16]

Even if the intelligence services were acting in good faith it is worth considering the remarks of Richards LJ, in Sarkandi, with which both Lord Justice McFarlane and Sullivan concurred:

A closed material procedure is inherently and irremediably unfair. Factual allegations may be made which cannot be challenged or tested. The role of the special advocates, who cannot effectively communicate with the claimants or obtain instructions, does not remedy the unfairness. The procedure is pernicious to justice, and the entire more so if a closed judgment is given. It creates an inequality of arms, handing the advantage to the Secretary of State in the litigation and giving him privileged access to the court. It risks corrupting the legal process.”[17]


Previously the Council of Europe commissioned 2 reports, the Marty Report and the Fava Report, both of which investigated the CIA established program on methods to detain and interrogate suspected terrorists at sites abroad. The program involved the rendition and treatment of those subjected to rendition. 

In Al Nashiri v. Poland the ECtHR identified the practice of rendition as “the High-Value Detainees Program” (“the HVD Programme”).[18] In the Al Nashiri case the ECtHR goes on to refer to an official American report entitled the “Special Review Counterterrorism Detention and Interrogation Activities September 2001-October 2003”. The Court observed that the report “was considerably redacted; overall, more than one-third of the 109-page document was blackened out”.[19] Nevertheless, the ECtHR explains that while official US policy statements publically condemned torture and inhumane treatment of political prisoners and detainees the report made sufficient disclosures to confirm that, Senior Intelligence officials believed that information “could not be obtained through then-authorized interrogation techniques”. Instead these “officials believed that a more robust approach was necessary to elicit threat information … [And] proposed certain more coercive physical techniques to use on suspects”.[20]

The ECtHR concluded that Poland had violated Articles, 2, 3, 5, 6, 8, and 13 of the applicant’s Convention rights; and in some instance there were multiple breaches of the same Article. The Court observed that:

Given the widespread torture and abuse in US custody of terrorist suspects whose statements could be introduced as hearsay evidence against the applicant, he was in consequence unable to confront witnesses against him.[21]


The irony here is that had this been an application against the UK then the applicant’s Convention rights may not have been violated because CMPs are part of domestic law unlike in Poland.

Severe damage can be done to the life of an individual and the public’s confidence in the administration of justice. The case of Martin Corey is a good example of how a person can be deprived of their liberty under very questionable circumstances. Despite Mr Corey’s incarceration having been found by the court to be unlawful the case continued up to the Supreme Court resulting in unsatisfactory judgment of unresolved issues.

Mr Corey’s fate was, to a significant and unacceptable extent, left to the control of the Justice Minister which undermined the Court’s integrity in CMP cases. The Minister eventually released Mr Corey to a form of internal exile where he is not to return home. It is unclear if Mr Corey’s exile has been relaxed or abandoned. What is clear is that where unchallengeable secret evidence is permitted in legal proceedings then the likelihood of an injustice being done is increased significantly.


[1] General Sir Frank Kitson (Retd), Low Intensity Operations - Subversion, Insurgency, Peace-Keeping, Faber & Faber, 1971, p.43.

[2] OPONI, Operation Ballast: Investigation Into The Circumstances Surrounding The Murder Of Raymond McCord Jr, 22nd January 2007, at p. 105 §24.19. https://www.policeombudsman.org/PONI/files/9a/9a366c60-1d8d-41b9-8684-12d33560e8f9.pdf

[3] ibid, at p. 117 §29.6.

[4] ibid, at p. 96 §22.5.

[5] OPONI, ‘Statement by the Police Ombudsman for Northern Ireland on her Investigation of matters relating to the Omagh Bomb on August 15, 1998’, at p.8 § 12. https://www.policeombudsman.org/PONI/files/d6/d611c014-7121-4739-a1b3-6a5570a4048c.pdf

[6] OPONI, ‘Statement Of The Police Ombudsman For Northern Ireland In Relation To The Omagh Bomb Investigation Report 15th August 1998’, 12th December 2001, at p. 10. https://www.policeombudsman.org/PONI/files/d6/d611c014-7121-4739-a1b3-6a5570a4048c.pdf.

[7] Houses of the Oireachtas Joint Committee on Justice, Equality, Defence and Women’s Rights, Final Report on the Report of the Independent Commission of Inquiry into the Dublin and Monaghan Bombings, March 2004, at p.58 § 4.15(8). http://cain.ulst.ac.uk/events/dublin/barron310304.pdf and http://www.dublinmonaghanbombings.org/home/docs/DubMonFinal.pdf

[8] On 16th January 2015, the Government published its response, ‘Sir Desmond de Silva’s Report of the Patrick Finucane Review: lessons learnt report’, wherein it states that the Intelligence Officers identified in de Silva’s Report have all now left service and, in the absence of being convicted under the Official Secrets Act, retained their pensions (at P.11 § 22). The Government single paragraph conclusion observes de Silva’s view that his “report should not be taken to establish civil or criminal liability of any individual or organisation referred to” in his Report (at P.13 §26). https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/396046/de_Silva_report_of_patrick_finucane_review_-_report.pdf

[9] The Report of the Patrick Finucane Review, Sir Desmond de Silva QC Pat Finucane Review, December 2012, at Part 2: The Murder of Patrick Finucane, Chapter 15, § 15.30. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/246867/0802.pdf

[10] ibid, § 15.31. 

[11] ibid, § 15.33. 

[12] Finucane’s (Geraldine) Application [2015] NIQB 57, at § 43. Stephens J

[13] Maurice Punch, State Violence, Collusion and the Troubles: Counter Insurgency, Government Deviance and Northern Ireland, Pluto Press, 2012, at p. 146.

[14] Chairman of the Undercover Policing Inquiry, launched on 28th July 2015, estimated to last for 3 years. https://www.ucpi.org.uk/about-the-inquiry/

[15] Undercover Policing Inquiry, launched on 28th July 2015, estimated to last for 3 years. 

[16] Evans, Rob, Prosecutors improperly withheld crucial evidence from trial of protesters.
The Guardian, Wednesday 10 June 2015. http://www.theguardian.com/uk-news/undercover-with-paul-lewis-and-rob-evans/2015/jun/10/prosecutors-improperly-withheld-crucial-evidence-from-trial-of-protesters. See also, Rob Evans, Convictions of 83 political campaigners in doubt over undercover police failings, Thursday 16 July 2015. http://www.theguardian.com/uk-news/2015/jul/16/theresa-may-public-inquiry-undercover-police.

[17] R (Sarkandi and Others) v Secretary of State for Foreign and Commonwealth Affairs [2015] EWCA Civ 687,at § 52.

[18] Al Nashiri v. Poland (Application no. 28761/11) Final 16/02/2015. At § 48.

[19] Ibid, a § 49.

[20] Ibid, at § 51.

[21] Ibid, at § 559.

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