The outcome of one failed and one non-instigated “supergrass” trial has raised a serious question for the North’s Director of Public Prosecutions, Barra McGrory.
Should he press ahead with prosecutions against leading Ulster Volunteer Force figures based on the evidence of another "assisting offender" – a man described as the "mother of all supergrasses"?
"Assisting offender" is the new official term for "supergrasses" in Northern Ireland – a form of witness largely discredited in the 1980s but back in legal vogue under the UK Serious Organised Crime and Police Act (Socpa) 2005.
This “supergrass”, if his evidence is to be trusted, could bring down some of the UVF’s biggest Belfast figures – and possibly some police officers.
The 1980s created such high-profile republican and loyalist informants as Christopher Black, Raymond Gilmour, Harry Kirkpatrick and William “Budgie” Allen, who had the potential to wreak havoc with the IRA, Irish National Liberation Army, UVF and Ulster Defence Association.
But by 1986 the system was severely tarnished and under strain. More than a dozen "supergrasses" had retracted their evidence and the Court of Appeal quashed the conviction of 18 men imprisoned on the word of IRA informant Christopher Black. Other appeals were also successful.
Socpa came into being to deal with organised crime, but it can also be used as part of the anti-terrorist weaponry.
What happened on Tuesday in relation to brothers Robert and Ian Stewart and to Neil Hyde on the face of it puts a question mark over whether “assisting offenders” will continue to be used in paramilitary cases. But that isn’t necessarily the situation.
“Each case will be taken on its own merits,” said McGrory.
This latest informant is charged with murder and other serious offences. He is a serious player and should know metaphorically and perhaps literally where the UVF skeletons are buried. His evidence could also implicate some police officers. But can he be trusted to tell the truth and appear as a credible witness?
Certainly the Stewarts couldn't be trusted and neither could Hyde. The Stewarts put notorious north Belfast UVF leader Mark Haddock and 12 other alleged UVF members directly in the frame for the 2000 murder of UDA leader Tommy English, as well as for a litany of other crimes.
In a 72-day trial, and under pressure from 13 teams of lawyers paid for from the public purse, their credibility was shredded. Twelve of the 13 were acquitted, with one man convicted of lower-scale terrorist offences.
Instead of a minimum of 22 years in prison the Stewarts served just three years. The DPP decided not to have their case reviewed in court because it was felt the lies they told did not have a material bearing on the result of the trial.
The case cost taxpayers £11.5 million (€13.5 million). In defence of forging ahead with the trial, the DPP noted that when the prosecution finished making its case the judge refused a defence application to dismiss the charges.
McGrory decided there was no point proceeding with Neil Hyde as a witness against Loyalist Volunteer Force members allegedly involved in the 2001 murder of Sunday World journalist Martin O'Hagan. Hyde, who is still in prison, was sentenced to three years instead of 18 for his part in O'Hagan's murder. His case will be reviewed in court – the first such review in the UK under Socpa legislation – to determine whether his term in prison should be increased.
So, two failures, but McGrory can point to success in the one other such Socpa case that went to trial. The evidence of “assisting offender” Mark Burcombe was believed both in the Crown Court and in the Court of Appeal. This was in the case of Stephen Brown, now serving a minimum of 30 years for the UVF murders of David McIlwaine and Andrew Robb near Tandragee, Co Armagh, in 2000.
One senior legal source said McGrory would make his decision on the major UVF "supergrass" based on cold legal criteria: has this informant told the truth and will he tell the truth in court? Is there police evidence to support his allegations? And does it all add up to a case where there is reasonable prospect of conviction of perhaps a couple of dozen UVF figures and maybe some police officers?
The point the source was making was that regardless of this week’s unsuccessful cases, the modern-day version of the “supergrass” trial is not necessarily dead and buried.