Northern Irish ‘on-the-run’ letters policy legal, but flawed

“On-the-runs” (OTRs) are back on the political agenda, and once again Northern Ireland is grappling with the fractures of its past.

Now we get the clearest insight yet into a process decried by some as sordid and objectionable, whilst hailed by others as central to the peace process.

In her 270 page report, Lady Justice Hallett gives her verdict on the “on-the-run” scheme first launched under Tony Blair: unprecedented and flawed but not unlawful, not secret, and not amounting to an “amnesty” for terrorists.

An “extraordinary scheme for extraordinary circumstances,” she notes.

Collapsed trial

Political and public interest in the story was ignited earlier this year after the collapsed trial of 62-year-old John Downey (pictured).

Downey had been accused of killing four soldiers in the 1982 Hyde Park bombing, but walked free from court after his legal team produced a 2007 letter from the government which stated that he was not wanted by any police force in connection with any past crimes committed during Northern Ireland’s troubles.

It was, as the judge would conclude, a “catastrophic mistake”. The so-called “comfort letter” should never have been sent to him, as he had in fact been wanted by Scotland Yard.

And it was in this highly fraught context that the scale and mechanics of this prosaically named “administrative scheme” finally emerged: 156 republicans, classified as on-the-run, had received similar letters in the decade which followed the Good Friday Agreement following pressure from Sinn Fein. Another 31 were told that they were ‘not wanted’ in some other way.

It triggered widespread outrage among unionists and victim groups in Northern Ireland, with the First Minister Peter Robinson at one stage threatening to resign unless an inquiry was immediately launched. David Cameron responded with the Hallett Review.

Systematic failings

Lady Justice Hallett concludes that these letters did not constitute an “amnesty” or a “get out of jail free card” for terrorist offences.

She points out that 23 individuals were in fact refused such letters of assurances as they were still “wanted” over previous alleged offences. The scheme was lawful and ministers, she concludes, did not “cross the line” when it came to making representations to the law officers charged with supervising it. However it was compromised by serious systemic failings, she says.

The review identifies a scheme which lacked design, proper lines of accountability and safeguards. There was a “confusion of roles”; a system of record-keeping which was “not fit for purpose” and “no overall policy”.

In normal circumstances, I would not expect a scheme of this kind to be kept quiet. If operated properly, there was nothing to hide Lady Justice Hallett

In addition to the John Downey “mistake”, it now transpires that two other letters were sent out in error.

Dame Heather says the ruling in the Downey case would not necessarily prevent the prosecution of others who have received letters of assurance. But she recommends that the Northern Ireland Office should now seek legal advice, to determine whether it should notify individuals who received letters that their status has changed, or may change in the future.

‘Below the radar’

The administrative scheme, Dame Heather says was a scheme with “no agreed policy” of communicating its existence. It wasn’t secret as such but it was kept “below the radar” – to the subsequent acute distress of victims – and this aspect prompts the following comment from the judge: “I am not in a position to judge the political sensitivities at the time… In normal circumstances, I would not expect a scheme of this kind to be kept quiet. If operated properly, there was nothing to hide”.

She adds that the fact that details of the administrative scheme were not broadcast meant that “one very important group of people, namely the victims of terrorism, failed to appreciate what was happening.”

That the government contrived to find a way to deal with the anomaly of the OTRs is perhaps understandable, given how much was at stake during those politically tender years following the Good Friday Agreement. It was, perhaps, a natural by-product of the early release scheme.

But the lack of openness about its existence – and the hurt thus caused – may be harder to justify, let alone the repeated and systemic failures.

And one very interesting postscript from Lady Justice Hallett.

The mistakes made, she says, need correcting, but “no one should use my findings to make political capital”. She must surely know in the cauldron of Northern Ireland politics, such an outcome would also prove somewhat “extraordinary”.

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