Justice for the Craigavon Two

Lessons learnt? The ‘intelligence services’ and the destruction of evidence in the North of Ireland.- By Dr Kevin Hearty PhD Transitional Justice.

The attention of human rights observers and activists in the North of Ireland turned yet again this week to the legacy of the sordid activities of the ‘intelligence services’. Following recent revelations that evidence relating to a notorious RUC ‘shoot-to-kill’ operation in Lurgan in 1982 was withheld and then deliberately destroyed, Director of Public Prosecutions Barra McGrory (Pictured Below) has ordered the PSNI and Police Ombudsman to launch investigations into the matter.

During the RUC operation in question 17 year old Michael Tighe was killed and Martin McAuley seriously wounded after being fired upon by RUC officers who alleged they had been confronted by an armed McAuley emerging from the hay shed. McAuley subsequently received a prison sentence in 1985 for possession of 3 rifles found in the hay shed at the centre of the undercover operation. The conviction was recently quashed on appeal following a successful appeal brought by the Criminal Case Review Commission. During the appeal it emerged that the ‘security services’ had first withheld and then destroyed an audio recording from a listening device in the shed that comprehensively contradicted the RUC’s version of events that they had opened fire on an armed man after issuing a warning. Moreover it also emerged that the then Deputy Head of RUC Special Branch ordered the destruction of tapes and monitor logs relating to the incident in case the disclosure that the RUC had acted outside the law caused ‘deep embarrassment’.

Commenting on the recent revelations when ordering the new investigations McGrory noted “the actions of police and security service personnel in relation to the concealment and destruction of potential evidence requires further investigation as does the identification of all those involved in such actions”. There is little reason to find fault or argument with McGrory’s synopsis of the matter. This was by all accounts a deceitful course of action taken by the intelligence services and police force that involved perverting the course of justice to not only secure an unsafe conviction against one young man but to also ensure the exoneration of those involved in the unlawful killing of another young man. There is clearly a need for an investigation into the case, and that need feeds into a wider need to investigate state violence and wrongdoing during the conflict. The failure of the HET and the constant heel dragging by the British state and PSNI where inquests are concerned will not disguise nor diminish the need to comprehensively ‘deal with the past’. Whether the recently established Historical Investigations Unit will deliver where the HET has thus far failed to, remains a matter of conjecture.

In accepting that the murky dealings of the ‘intelligence services’ in the past need inquiring into, however, one should not assume that such dealings are themselves a thing of the past. Regarding such activity as a product of a bygone area when ‘spooks’ were fighting the ‘dirty war’ may provide peace of mind but empirical evidence suggests it would be misguided and foolhardy. Recent revelations relating to the ‘intelligence services’ campaign against what is termed ‘violent dissident republican’ (VDR) activity points to the continued practice of evidence destruction by the ‘intelligence services’. In an environment where the ‘intelligence services’ have increasingly thwarted whatever threat the residual elements of militant republicanism pose, there may be a prevailing opinion that they should be largely unencumbered to continue doing so. A wider ‘war on terror’ climate that has seen increasingly indiscriminate and bloody ‘terrorist’ attacks – whether in Paris, Belguim, Nigeria, Boston or London – strengthens such as argument. The end it seems may justify the means, even if that means involved perverting the course of ‘justice’ and curtailing human rights on a whim. What this argument fails to overlook is that the means that set out to tackle ‘terrorism’ can often become as dangerous as ‘terrorism’ itself. Where does the line between what is acceptable in an ‘anti-terror’ context and what is unacceptable in an ‘anti-terror’ context get drawn – Gulags? Internment camps? Mass deportation? Censorship of free speech? Denial of the freedom of political expression? Moreover is one type of ‘terrorism’ more dangerous or acceptable than another form? Does ‘VDR’ merit an equal, greater or lesser response than fundamental Jihadi ‘terrorism’? Who decides the answers to these questions and who adjudicates on the fairness of such answers?

Take the use of Regulatory Investigative Powers Act (RIPA) for example. As an ‘anti-terror’ legislative provision, one could be forgiven for thinking its usage would be limited to combating militant Irish republican splinter groups engaged in VDR and against fundamentalist Jihadi groups. The reality is that RIPA has been used to target journalists in relation to tracing their sources (used almost half a million times for this purpose last year alone) and has been used to target those evading paying a TV license fee. RIPA was not enacted for these purposes, just as the Justice and Security Act 2007 was not enacted to target legitimate political opponents of the Good Friday Agreement in the North of Ireland (CAJ has shown that political policing remains a live issue in the North of Ireland post-Patten) and just as the Prevention of Terrorism Act was not designed to detain Iraqi and Palestinians in Britain during the first Gulf War. Empirical evidence, of course, tells a different story. The recent recommendations for strengthening ‘anti-terror’ provisions to include forcing people into internal exile (a modern permutation of the ‘exclusion order’ process debarring Irish republicans from the British mainland) and targeting air lines carrying returning Jihadis is another slip towards the post-9/11 ‘big brother’ state under the auspices of counter-terrorism- your civil liberties and human rights are being taken from you bit by bit but for God’s sake at least be thankful as we are saving you from the omnipresent ‘terrorist’ threat!

Two cases are instructive in showing that the ‘intelligence services’ continue to engage in questionable practices in the North of Ireland. Ironically both of them centre on the same geographical area as the Tighe case. In October of last year Lurgan man Ryan McKenna was acquitted of charges relating to an attempted mortar attack on the PSNI in Lurgan in 2007. He was acquitted after the state offered no evidence against him. In light of the collapse of the McKenna trial there have been claims that the ‘intelligence services’ had interfered with evidence from a covert surveillance operation relevant to the alleged mortar plot. According to McKenna’s solicitor SAS debriefing notes, radio logs and notebooks had been destroyed as well as a soldier statement having parts of it deleted. In the case of the Craigavon 2 a conviction was secured against John Paul Wooton (and Brendan McConville) despite similar interference with evidence by the ‘intelligence services’. During a recent appeal by John Paul Wooton and Brendan McConville it emerged that the ‘intelligence services’ had deliberately deleted evidence from a tracking device attached to John Paul Wootons car. As the claim that John Paul Wooton was a ‘get away’ driver in the Continuity IRA attack that killed PSNI constable Stephen Carroll is central to the case against him questions must be asked in relation to what data was deleted from the device and why? One can assume that if the evidence corroborated the apparent guilt of Wooton it would be produced in court rather than deleted.

Given that the director of the PPS has outlined his views on the destruction of evidence by the ‘intelligence services’ one may expect that an investigation was ordered into the case. Surely, on the basis of McGrory’s own statement, those involved in the deliberate destruction of data from the tracking device on Wooton’s car have been investigated and identified. This has yet to happen and rather than pursuing the ‘intelligent services’ on this matter the PPS actually went to court to have Wooton’s sentence increased. What was unacceptable conduct by the ‘intelligence services’ in 1982, one may deduct from this course of action, is therefore not necessarily unacceptable in 2009. It is hard to identify the logic that underpins such a conclusion. Some questions do however spring to mind.

Is it perhaps that one happened during ‘the war’ rather than in a post-Patten context? The implication of this being that it can now be addressed in an environment where, while causing mild discomfort and the odd red face, it will not limit the current approach of the ‘intelligence services’ in tackling VDR. Could it be that there is a belief that in a post-Patten environment where policing oversight bodies have been set up such a thing is deemed unlikely to happen? CAJ have comprehensively dismissed such a notion in their benchmark research on ‘the policing you don’t see’, while any informed observer would be aware that the remit of accountability bodies in the North of Ireland do not include the activities of the ‘intelligence services’. Might there be a political element to the decision, whereby in a post-9/11 ‘war on terror’ context ‘dissident republicans’ are game for the misdeeds of the ‘intelligence services’? Could it just be possible that, as David Cameron told parliament recently in relation to the Finnucane killing, the mistakes of the past have been learnt as the ‘intelligence services’ now have – to quote Cameron – ‘compliance with human rights and other legal obligations’ enjoying ‘a fundamental place at the centre of activities’. Presumably Cameron was unaware of the Craigavon 2 and McKenna case when he made these comments.

The answer to why there has not been an investigation into the McKenna and Craigavon 2 cases may lie in all of the above- it may conversely lie in none of the above. Who knows? What can be said for certain, however, is that if interference with evidence by the ‘intelligence services’ in 1982 spawned a miscarriage of justice there is no viable argument as to why it cannot have done the same in 2009.