The Irish Times view on the Kenova report: the British authorities crossed the line

In his interim report on Operation Kenova, the independent investigation into the activities of the British double agent Stakeknife during the Troubles, Jon Boutcher offers a clear-eyed assessment of the central issue: where does the balance of the public interest lie when covert agents engage in criminal activities?

The answer of the PSNI Chief Constable is unequivocal. The use of double agents is a legitimate part of the preservation of law, order and national security, he argues, but they are only a means to a greater end – the safeguarding of democracy, the rule of law and human rights. Those managing covert agents must never lose sight of this central tenet lest they risk doing more harm than good.

It is clear from his report that the British army crossed this line many times in their handling of Stakeknife – widely identified as Freddie Scappaticci, the IRA’s head of internal security. This was done through withholding or suppressing information that would have prevented crimes being committed – including murders and abductions – in order to protect his cover.

There were many reasons why this was allowed happen, including the absence of clear regulations for people handling agents. Instead, they relied on Cold War era guidelines that were not updated until 2000.

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A seasoned police officer, Boutcher is more aware than most of the pressure Stakeknife’s handlers would have been under. Mistakes and questionable decisions were inevitable and understandable, he concludes. But, crucially, this does not convey immunity for the consequences of bad decisions.

Holding the people who directed Scappaticci to account has proved difficult. The Public Prosecution Service in the North has decided not to prosecute any of the individuals in 28 files sent to it by Kenova. Ten of the files related to Scappaticci, who died last year. The others did not proceed because, in the view of the PPS, there was insufficient evidence to secure a conviction.

In this regard Boutcher highlights what he terms the implacable dogma or mantra of the British government’s policy that it will “neither confirm nor deny” (NCND) the activities of its intelligence services as a significant obstacle to accountability.

The determination of the British government to protect its intelligence and security services – under the guise of national security – remains one of the biggest obstacles to wider efforts at reconciliation and dealing with the legacy of the Trouble. It has seen the latest effort – the Northern Ireland Troubles (Legacy and Reconciliation) Act – ruled to be in breach of human rights law.

Kenova will not draw a line under the Stakeknife affair, but it will hopefully bring at least some peace of mind to the families and other survivors – one of the objectives of the inquiry.