On-the-run scheme not a ‘get out of jail card’ - report

Lady Justice Hallett says letters for Republicans ‘unprecedented’ but not unlawful

Lady Justice Hallett found that the on-the-run  scheme used was ‘unprecedented and flawed’, but that it was not unlawful or improper. Photograph: Nick Ansell/PA Wire

Lady Justice Hallett found that the on-the-run scheme used was ‘unprecedented and flawed’, but that it was not unlawful or improper. Photograph: Nick Ansell/PA Wire

Thu, Jul 17, 2014, 12:45

The British Government’s decision to tell Republican on-the-runs that they were not wanted for prosecution was not “a get out of jail card”, a top British judge declared today.

In a keenly-anticipated report, Lady Justice Hallett found that the scheme used was “unprecedented and flawed”, but that it was not unlawful or improper.

The on-the-runs emerged into public view earlier this year after an Old Bailey judge ruled that John Downey could not be prosecuted for the 1982 Hyde Park bombing because he had been given one of the letters.

However, today’s report has found that Downey was not the only individual to have received letters of comfort — a fact that will be seized upon by Unionists.

In one, a man was given a letter even though he was wanted for questioning by the PSNI about a crime allegedly committed in 2003 — five years after the Good Friday Agreement.

In another case, a letter was issued by the Northern Ireland Office which gave a man’s birthday incorrectly, said Lady Hallett, who was asked to review the scheme after the Downey controversy erupted.

Despite the criticisms in today’s report, former Labour prime minister Tony Blair and other senior Labour figures, who have argued that the scheme was a necessary “messy compromise”, will see it as a vindication of their actions.

Unionist politicians charged after the Downey row broke that the OTRs scheme was an abuse of the legal process, designed to prevent proper prosecutions from going ahead.

However, Lady Hallett found that the OTR letters were not “an amnesty”, while prosecutors were able throughout to make independent decisions on whether to take cases. Representations from Labour ministers to legal officers during the life of the scheme which began in 2010 “may have come close to the line of what was acceptable” they “did not cross it”, she found.

Significantly, she found that the Downey ruling was “made on its own facts and would not necessarily prevent the prosecution of others who have received letters of assurance”.

Later, she went on: “I repeat: it was not an amnesty. There was no intention to drop prosecutions or alleged terrorists who had yet to stand trial where the test for prosecution were met.”

Significantly, too, Lady Justice Hallett disagreed with views expressed during the House of Commons’ Northern Affairs Committee’s own inquiry into the issue.

There, it was argued by some that evidence that was known to exist by police officers before an OTR letter was sent but was then regarded as insufficient to justify arrest could not be be used subsequently.

The ruling, she said, in Downey’s case “was made very much on its own facts”. The judgment to be made in any future case where letters were issued “will depend on the individual circumstances”.