'Compelling' case for public inquiry
The Government's 11-page assessment of the British Irish Rights Watch
report on the murder of Mr Pat Finucane was sent to the Northern Ireland
Secretary, Dr Mo Mowlam, by the Minister of State for Foreign Affairs,
Ms Liz O'Donnell, with a covering letter, dated April 13th. The full
text of the report follows the letter:
Dear Mo,
I am writing to you about the report by British Irish Rights Watch into
the murder of Pat Finucane which we both received on 12 February last.
I read the report and also asked our officials to examine it. The
attached assessment sets out their views. In the light of the report and
this assessment, I believe that the case for a public inquiry into all
the circumstances surrounding Mr Finucane's murder is compelling.
As the assessment argues, the Finucane case and the associated
allegations of collusion, fulfil the fundamental requirement of a public
inquiry - i.e. that the matter under consideration is of urgent public
interest. The accumulated evidence is sufficient to give reasonable
cause to the public to believe that collusion may have taken place.
Moreover, the allegations in question serve to undermine confidence in
the rule of law and the concept of equality before the law. In my view,
they can only be answered with confidence - one way or the other -
through the mechanism of a public inquiry.
While it is invidious to select one victim as more deserving than
another, I believe that the murder of a lawyer is different in symbolic
terms, though not obviously in human terms for the relatives left
behind. To blur the lines between client and lawyer
by targeting the lawyer is a fundamental attack on the rule of law and
thus the very basis of civilised society. This makes the case for a
public inquiry all the more compelling. As you can see from the
assessment, we very much approached the Pat Finucane case as a reckoning
with the past so as to signal that the new dispensation of the Good
Friday Agreement represents a new reality and the promise of a new
future. The assessment was written before the heinous murder of Rosemary
Nelson. Her murder has shocked all of us, North and South, including of
course the legal/human rights community both here and abroad.
In the spirit of the close co-operation and collegiality that marks
relations between our two governments, we will not be taking a further
public position on the case until we have had an opportunity to discuss
it together. I hope this will be possible over the next few days.
Yours sincerely,
Liz O'Donnell, T.D.,
Minister of State
This is the full version of the Government's assessment sent to Dr
Mowlam:
CONFIDENTIAL
Deadly intelligence -- State Involvement in Loyalist Murder in Northern
Ireland
An Assessment of the report by British Irish Rights Watch
GENERAL
1. British Irish Rights Watch (BIRW) states that its report into the
murder of Pat Finucane, based on painstaking research over a number of
years by a range of bodies and individuals, seeks to set out in good
faith what it believes to be the facts of "an extremely sinister
situation". It believes that the British Government knows the truth of
what happened. It calls on the British Government to set up an
independent inquiry to investigate the contents of its report.
2. The report notes that there has not been a public inquiry into these
matters. Of the two investigations by John Stevens, only the summary of
the first one has been made public. The report alleges that the security
forces withheld information from and sought to frustrate and mislead the
work of the Stevens investigations.
3. The report argues that if the material on which the allegations are
based is authentic, then the report represents an "unanswerable case"
for an inquiry. Such an inquiry should consider the murder of Pat
Finucane, the activities of the Force Research Unit (PRU) and the deaths
and crimes allegedly resulting from those activities.
SOURCE MATERIAL
4. The report is based on two sources of information, one public and one
confidential. The first is a compilation of the results of investigative
journalism and other information publicly available - trial transcripts
and parliamentary debates, for example. The second is a body of material
compiled by XXXXX a widely respected journalist XXXXX XXXXXXX from
confidential contacts and sources. This material purports to be copies
of documents originating within the British security and intelligence
establishment and a copy of a diary kept by a key agent, Brian Nelson.
Should this second body of information be authenticated, then it
qualitatively enhances the validity of the allegations made in the
report regarding certain security force activities in the 1988 - 1994
period.
PRIMARY ALLEGATIONS
5. The report makes four primary and over-riding allegations:
- that the security forces were complicit in the murder of Pat Finucane.
that elements within the RUC incited his murder in a number of ways,
that named officers in the RUC procured his murder and that RUG Special
Branch had detailed advance knowledge of the murder plot.
- that his murder was part of a "systematic strategy" directed by a unit
(FRU) within British military intelligence whose purpose was to direct
loyalists to murder republicans in what the report describes as "state
murder by proxy". If true, BIRW believes that it means that FRU
committed serious crimes, "including conspiracy to murder, by collecting
and providing information likely to be of use to terrorists and
directing terrorism"
- that FRU's agent, Brian Nelson, enhanced loyalist intelligence and
this, combined with his assistance in procuring a major shipment of
South African aims for loyalists (in which M15 agents were alleged to be
instrumental and about which British military intelligence was aware in
advance), allowed loyalists to double their capacity for lethal force
long after Nelson's activities as an agent ended.
SECONDARY ALLEGATIONS
6. Throughout the report there are a range of what can be termed
secondary allegations. For example, it notes that an examination of
Nelson's diary reveals that collusion was "rife" in Northern Ireland and
that Nelson believed that the main sources for the UDA's intelligence
were members of the UDR. Moreover, Nelson's diary indicates that a
British Army handler known as "the boss" suggested that the UDA should
start a bombing campaign in the South, even going so far as indicate an
oil terminal outside Cork as a potential target. It is also alleged that
Nelson claimed that the photographs with the highest security
classification came from RUC sources.
BIRW PROFILE OF FRU
7. According to the report, the FRU had detachments in seven barracks
across Northern Ireland. Its HQ was based in Lisburn. It was commanded
by a Lieutenant Colonel and employed somewhere in the region of 80-90
army personnel, the core of whom handled agents in the field. Many of
these agents were informants in paramilitary organisations, both
loyalist and republican. The results of contacts with them were recorded
on Contact Forms (CFs) under various headings (diary of events since
last meeting, finance, security, tasks, etc). The information from CFs
was distilled into Military Intelligence Source Reports (MISRs) which
were copied to the RUG (Special Branch) or, if the material was
particularly high grade, it was put into a MISR supplement with more
limited circulation, though still including the RUG.
QUESTION OF FRU'S ROLE
8. Colonel J, the head of the FRU who testified at Nelson's trial (and
who is named in the report), claimed that the FRU existed to obtain
information on possible targeting by paramilitary organisations and in
doing so avert actions against those targets. However, the report claims
that its examination of the journalist's material reveals that FRU's
real role was to provide accurate information to loyalists on active
republicans for the purposes of assassination. FRU files and Nelson's
diary suggest that Nelson was involved in 15 murders, 15 attempted
murders and 62 conspiracies to murder, though this, in the report's
view, may be an underestimation. The report provides details of Nelson's
background and his role as FRU's agent within the UDA. He supplied "P"
(for personality) cards and security force photo-montages of IRA
suspects to the UDA. The information was intended to supply details for
assassination. The report notes that it appears that Nelson also
supplied information to members of the UVF and that information
originating from Nelson also found its way to the Red Hand Commandos.
9. One of the few interventions recorded to save life involves an
allegation that a named RUG officer sought to have Harold Mayners
murdered. This was frustrated by FRU, despite the concern of a British
Army handler (named in the report) that to do so would compromise
Nelson's cover in what the BtRW believes to be a rare example of it
fulfilling its alleged purpose. Indeed, the report suggests that this
very concern underscores the contradiction between what FRU was claiming
to do and what it was actually doing. For the value of Nelson was
apparently such that his cover was protected even if it meant the
frustration of what J. claimed in court was FRU's very purpose. In the
light of what the report asserts about FRU, Colonel J's claim about FRU
existing to protect life would be clearly untenable. The report notes
that "the picture that emerges is not one of Nelson saving lives but of
his active participation in numerous loyalist attacks". It goes on: "We
(BIRW) believe that, far from having as its aim the saving of life, the
aim was to direct loyalist violence against republican targets - it was,
in effect a policy of shoot-to-kill by proxy ... Its unacceptability is
underscored by the fact that some of those who died were innocent
victims even within the policy's own terms."
10. Overall, BIRW believes that neither Nelson nor FRU were maverick or
aberrant. Rather, that Nelson was a key part of FRU operations and that
FRU was "an integral unit within the intelligence Corps, with detailed
and clear lines of reporting within the army and clear links with M15
and Special Branch."
COLLUSION OR DIRECTION?
11. The report notes the extent of collusion between loyalist gunmen and
members of the security forces. Fresh allegations coming into the public
domain since the report was handed to the Government have emerged from
Peter Taylor's documentary Loyalists which includes an interview with
UFF member Bobby Philpott alleging an extraordinary volume of material
coming from the security forces to the XJDA. Indeed, BIRW believes that
some of this new information corroborates allegations contained in its
report.
12. However, the report also questions whether collusion sufficiently
conveys what the pattern of murders suggests and wonders whether it
might be a misnomer. The loyalist campaign from 1988 to 1994 was, the
report notes, markedly different in both volume and precision. There was
an "uncanny ability for the perpetrators to arrive at and depart from
the scene of the murder without being apprehended by the security
forces, despite in some cases the presence of security cameras or the
proximity of the attack to a police station or army base or checkpoint"
The report goes on: "The pattern of killings suggests a far greater
degree of direction and coordination between those sections of the
security forces charged with collecting information and those sections
capable of organising safe passage for loyalist killers than can be
explained by random acts of collusion."
IS THE BIRW REPORT COMPELLING?
13. While the impetus for BIRW's report stemmed from the existence of
the material which came into possession, the strength of the case
presented by BIRW derives from combination of information in the public
domain with that provided by the journalist. This combination creates a
cogent case for a belief, on a prima facie basis, that elements in the
security forces may have committed a range of serious crimes and
breaches of the European Convention on Human Rights. Very disparate
sources of evidence including sequences of apparently official and
confidential reports, fragments of and omissions from those records,
trial transcripts, the results of investigative journalism and
investigations by various human rights organisations, have been brought
together in a way which suggest corroboration and mutual reinforcement
for the allegations.
14. The report also points to patterns which tend to confirm widespread
suspicions that elements in the security forces were used, at the
expense of the rule of law, to prosecute a campaign against those deemed
enemies of the state and to conceal what that entailed and who was
culpable. These patterns include the stark change in the volume and
precision of loyalist lethal force between 1988 and 1994, the failure to
apprehend those involved, the failure to convict members of the UDA/UFF
for murder, the failure to thoroughly investigate the allegations of
collusion, the failure to publish the reports of these police inquiries
or pursue prosecutions and the failure to respond to compelling and
growing evidence by establishing a full judicial' inquiry.
BASIS FOR A PUBLIC INQUIRY?
15. A public inquiry is held when it is deemed that there are matters
sufficient on the grounds of urgent public interest to warrant one. The
decision to establish an inquiry is made by the British Government under
the terms of the Tribunal of Inquiry (Evidence) Act, 1921. The chairman
of the inquiry has the legal powers of a high court judge. As Lord
Saville, chairman of the new inquiry into Bloody Sunday, has made clear,
the role of the chairman is inquisitorial. The purpose of the inquiry is
not, in other words, to preside over an adversarial process but rather
to use the powers conferred on the inquiry to establish the truth
regarding the matters of urgent public interest.
16. It is interesting to note of course that the term "urgent" should
not be taken to mean contemporary - the Saville Inquiry is, after all,
investigating events over a quarter of a century old but which remain a
matter of urgent public interest.
17. Nor should it be thought that new information is a requirement for
an inquiry. That is to confuse the grounds for re-opening a case before
the courts with the purpose of an inquiry.
18. A crucial question is whether the matter of public interest can
reasonably be seen to justify an inquiry on the basis of merit alone.
Generally inquiries are about matters in which the state or its agents
(whether individuals or bodies) are believed to have been involved
either through acts of omission or commission. The value of an inquiry
in terms of the society as a whole is that it seeks to locate where
culpability lies and thus establish a basis on which society, through
its democratic system, can set abut rectifying identified faults. Such
faults can arise either through negligence (e.g. Dunblane) or because of
systematic problems (such as institutional racism in the London
Metropolitan Police in the Lawrence case).
19. In this context, there can be little doubt but that the Finucane
case sufficiently meets the criteria for a judicial inquiry. The
following points are germane:
- On a prima facie basis, the material contained in the BLRW report
would seem to point to serious breaches of domestic and international
law by individuals acting or claiming to act on the part of the state.
- the failure to hold a public inquiry into the issue of collusion.
- the failure to publish the reports of the two investigations
undertaken by John Stevens.
- the compelling circumstantial evidence presented by the marked change
in the pattern of loyalist killings between 1988 and 1994 involving both
a substantial increase in frequency and precision.
- the circumstantial evidence in numerous cases of security force
activity immediately prior to the arrival of loyalist gunmen intent on
launching lethal attacks and the consistent failure to apprehend, at any
point over a six year period, any of the limited number of loyalist
gunmen involved, despite the existence of a network of agents and
informers, including crucially Brian Nelson as chief intelligence
officer for the group primarily responsible, the UDA/UFF.
- the renewed admissions by loyalist paramilitaries that information
from security sources was given to them on a regular and widespread
basis, and that this information significantly enhanced their ability
for targeting and lethal force.
- the allegation that agents of the state were involved in illegal arms
shipments from South Africa to loyalist paramilitaries in Northern
Ireland. the failure of the authorities to satisfactorily account for
the purpose and activities of the FRU.
- the failure to prosecute a single RUC officer on grounds of collusion.
- the failure of the DPP to use Brian Nelson as a witness despite his
admission of direct knowledge about a number of murders and their
perpetrators.
- the belief that RUC officers failed to cooperate with and possibly
sought to frustrate the Stevens investigation, noting the account
provided by John Stalker of his attempts to investigate allegations of
shoot-to-kill detailing hostility and obstruction by members of the RUC.
- the belief that FRU sought to frustrate and. misdirect the Stevens
investigation.
- the widespread belief in the nationalist community that members and
units of the security forces were involved in systematic purposeful
collusion.
- the allegation that FRU and RUC Special Branch had advance knowledge
of impending attacks by loyalists and took no action
- that unless and until the widespread concerns in the nationalist
community that collusion between the security forces and loyalist
paramilitaries was widespread, purposeful and directed are examined by a
public inquiry, confidence in the administration of justice and the
security forces will be undermined.
CONSEQUENCES OF SUSTAINED PEACE
20. In the Northern Ireland context, it is perhaps inevitable that after
decades of both paramilitary violence and counter-insurgency measures,
calls for inquiries into a variety of controversial circumstances
involving the use of lethal force by the state would gain momentum in
the context of a sustained peace. It has been a poignant characteristic
of relatives who have lost loved ones in such circumstances that the
desire for truth and justice reaches a particularly acute point during
sustained peace where previously the perpetuation of violence and
atrocity occluded from public view their own pain and loss. The lack of
corrective action denied them the normal solace of the pursuit and
prosecution of those who inflicted such pain and loss. Those failures
endorsed an existing sense among nationalists of being under-valued and
unequal in the eyes of the law. However desirable in terms of political
reconciliation it may be to draw a line under the past, victims'
relatives will inevitably carry their burdens into everyone's present
and to continue to do so unless and until they have answers that help
reconcile them with their loss. This applies equally to all those
culpable of violence in whatever cause. The pursuit of certain cases can
serve to be representative of that process of candour and truth. The
Finucane murder would manifestly be such a case.
12 April 1999