director of public prosecutions document

Additional CAJ Submission to the CJRG

Patrick Finucane was killed by loyalist paramilitaries in 1989. Mr. Finucane was a well-known and respected member of the legal profession who had been a prominent advocate on behalf of people from both sides of the community whose rights had been violated.

Immediately after his death allegations about collusion between his killers and members of the security forces began to emerge. Eventually, directly as a result of the Stevens inquiry into collusion, an agent of the military intelligence Brian Nelson was charged with a number of offences. He was not charged with any offences in relation to Pat Finucane, but there is clear evidence that he was involved in planning his murder. In his statement to the Stevens inquiry Nelson says that three days before the Finucane murder, at the request of the commander of the UDA’s military wing, he handed him a photograph of Finucane as he left the court. Although he alleged that he thought the target was not Finucane, he had also prepared a “P” card on Finucane containing information which was used in the assassination. He allegedly also admitted that he followed Finucane home from his office in order to get his home address¹. Nelson also confessed to similar matters in a prison diary which became the subject of a Panorama programme on the case. After that programme, Deputy Chief Constable Stevens was asked to investigate this particular case. Reports were forwarded to the DPP in April and October 1994, and in January 1995. The Director concluded, without any public explanation for his reasons, that there was insufficient evidence to warrant prosecution of any person.

The Nelson affair more generally again brings into sharp relief the concerns which CAJ has with the current prosecutorial process. Nelson was arrested in early 1990. At a hearing on 15th June he faced 34 charges including two counts of murder. At that hearing it was admitted that Nelson was an agent for military intelligence.

Two years after Nelson’s arrest, his trial began. Speculation had been rife that Nelson was going to expose the involvement of the army in a large number of offences including murder and attempted murder. However, it was explained by counsel for the Attorney General, Brian Kerr QC, that after “a rigorous examination of the interests of justice”, fifteen charges were now to be dropped including the two murder charges. Nelson then pleaded guilty to the remaining charges which included five counts of conspiracy to commit murder. The court heard pleas for leniency from a senior army officer and from the then Secretary of State for Defence, Tom King. Nelson was sentenced to 10 years. Nelson was freed in 1996.

Many questions arise as a result of this case, for example, why did the Attorney General take control of the prosecution in this case? On what legal basis was this done? What are the implications of this for the independence of the DPP from political control?

SUBSEQUENT DEVELOPMENTS

Since our original submission to the Review there has been a number of significant developments in the Finucane case which raise further concerns about the independence and integrity of the office of the DPP.

Following the submission to the Secretary of State of a confidential report on the Finucane case prepared by the London-based human rights group, British Irish Rights Watch in February this year, the Chief Constable of the RUC asked John Stevens to investigate the Finucane murder again. Mr. Stevens investigation began in April².

On 23rd June a Mr William Alfred Stobie was charged with the murder of Patrick Finucane. When he was charged Mr Stobie made the following statement:

“Not guilty of the charge that you have put to me tonight. At the time I was a police informer for Special Branch. On the night of the death of Patrick Finucane I informed Special Branch on two occasions by telephone of a person who was to be shot. I did not know at the time of the person who was to be shot³.

Following the charging of Mr Stobie, his solicitor Mr Joe Rice told the court that his client was a “paid Crown agent” from 1987 until 1990 and that he gave the police information on two occasions before the Finucane murder which was not acted upon. In addition Mr. Rice claimed that “As a result of this information at another trial involving William Stobie on firearms charges on January 23 1991, the crown offered no evidence and a finding of “not guilty” was entered on both counts. My instructions are that the bulk of evidence here today has been known to the authorities for almost 10 years⁴.

THE ARMS CHARGES

In the Sunday Tribune newspaper on 27th June, which is attached, a very detailed account was given of the arms trial which Mr Rice referred to⁵. The article alleges that during the trial Mr Stobie threatened that he would publicly expose what he knew about the Finucane murder. The article claims this threat was communicated to senior counsel for the DPP, Mr Jeffrey Foote QC, now a County Court judge. Shortly after the communication of this threat the trial was aborted because a police officer, while giving evidence, made the elementary mistake of mentioning Mr Stobie’s criminal record. According to the newspaper the trial was re-listed on a number of occasions but adjourned with little explanation. Finally, on 23rd January 1991 the DPP offered no evidence and requested that a not guilty verdict be entered against Mr Stobie.

CAJ have now had sight of the depositions relating to the arms charges which Mr Stobie faced in 1991. The weapons were found in the roof space of Mr Stobie’s flat by the police⁶. Mr Stobie was arrested and asked to explain the presence of the weapons. He failed to provide any credible explanation saying only that the weapons were not his and they must have been placed there by somebody else⁷. Those familiar with the criminal system in Northern Ireland will of course be aware that in circumstances where weapons are found in a defendant’s property, the burden of proof reverses and the defendant must persuade the court of his/her innocence. The vast majority of such defendants are consequently found guilty. In the absence of any explanation from Mr Stobie it is remarkable that the DPP would have ordered that the charges be withdrawn and not guilty verdicts be entered against him.

CAJ wrote to the DPP on 28th June asking why, in light of the above, the arms charges had been withdrawn. On 30th July we received a response which read that “[I]n these circumstances, as the matter if sub judice, I do not consider it would be proper, at this stage, to reply to each enquiry which you make save in respect of matters which are presently in the public domain.”⁸

We were not satisfied that the sub judice rule did in fact apply to the arms charges case as the matter had been dealt with more that eight years previously. Indeed in a parliamentary debate on 8th July 1999 Kevin McNamara MP was permitted to proceed with a discussion of the case in spite of concern about the sub judice rule precisely because the case was no longer before the courts. We alerted the office of the DPP to this and again requested an explanation for the decision to drop the arms charges against Mr Stobie. On 18th August we received a reply which said that the Director did not share our views on the sub judice rule and therefore had nothing to add to his letter of 30th July.

The issue of the arms charges also become significant during the course of a second High Court bail application by William Stobie on 5th October. It was acknowledged by the Crown that Stobie had received bail on these arms charges. The Crown was then specifically asked by the High Court judge, Mr Justice Sheil to provide him with additional information in relation to the arms charges. Crown Counsel sought further instructions and then told the court that Stobie’s trial on these arms charges had commenced and was then aborted when a detective constable had given evidence that Stobie had a previous conviction. According to the Crown, the DPP was not aware at that stage that Stobie was an informer. However, at the start of his retrial Stobie’s legal advisors informed Senior Crown Counsel at the time, Jeffrey Foote QC, that he was an informer. This was communicated to the DPP who then asked for further information from the police. Following receipt of that information the DPP was faced with five “reasonable possibilities”. These were:

1. It was possible that the applicant was in possession of the arms for his own purposes.

2. It was possible that the applicant may have informed SB in general or in particular at an early stage that the arms were in his possession or believed he had done.

3. Irrespective of that, he might have arranged his affairs so that the arms were found to preserve his credibility.

4. It is possible that he had forgotten that firearms were present in his premises (to which the Judge responded that this is not usually an excuse that the Director would accept)

5. The firearms were placed there without his knowledge.

In light of these five factors the DPP decided to withdraw the charges.

THE CONFESSION

The decision to withdraw serious arms charges against Stobie caused significant public concern. This concern has recently been heightened by remarkable revelations that despite confessing to his role in the Finucane murder Mr Stobie was not charged with any offence.

Mr Stobie first applied for High Court bail on 3rd August 1999. Counsel for the DPP outlined the case against him. It was explained to the court that a journalist called Neil Mulholland had interviewed Stobie in 1990 and took detailed notes of the interview. Mulholland told the police about the interview but declined to make a written statement. Mulholland was re-interviewed by the Stevens team and had now made a written statement and this formed the basis of the case again Stobie. The police view of Stobie’s role was that he was present when the murder was discussed, he supplied the weapons to the killers knowing they would be used to murder Pat Finucane, and was also involved in the recovery of the weapons.

It was also explained to the Court by counsel for the DPP that Stobie had been arrested in September 1990 and questioned about the Finucane murder for seven days from 13th-20th September. During the time, the Court was told that he had denied involvement in the murder.

A file had been sent to the DPP in 1990 but according to the Crown, the “Director thought there was insufficient evidence against Stobie, principally because Mulholland refused to put his verbal account into evidential form. It would be open to the Director to proceed and compel Mulholland’s attendance and while he could be compelled, unlikely to give an account in open court. Information was available to the police but there was insufficient evidence to be used in court. It was not an officer who decided not to proceed, it was taken at the highest level, where it was decided that there was insufficient evidence.” ⁹ This decision not to prosecute Stobie in relation to the Finucane case was taken on 16th January 1991, seven days before the dropping of the arms charges against Mr Stobie¹⁰.

The clear import of this explanation given to the court was that they only evidence against Stobie was the allegations made by Mulholland to the police but unsupported by a written statement.

However, at a subsequent related hearing further information emerged. Ed Maloney, the journalist who had written the extended expose for the Sunday Tribune about Stobie’s involvement in the Finucane case, was asked by the Stevens team to provide them with copies of original notes he had from his meeting with Stobie. He refused and the police then obtained ex parte an order under Schedule 7 to the Prevention of Terrorism Act compelling him to hand over the material. At a full inter partes hearing of the matter, a Detective Chief Inspector Turner gave evidence in support of the application. During the course of his cross-examination the Chief Inspector indicated that following the meeting between Mulholland and the police in September 1990, Stobie was arrested and questioned. He was released and a file was sent to the DPP. However, the Chief Inspector said that while Mr Stobie denied shooting Mr Finucane when he was interviewed in 1990, he admitted being the Quartermaster for the UDA, supplying the weapons and recovering them after use¹¹. Essentially therefore Mr Stobie admitted in 1991 the role that is now being alleged in the indictment against him. The Chief Inspector also thought that during his detention in 1990 Mr Stobie had mentioned his role as a Special Branch agent.

It therefore appears that at Mr Stobie’s bail application, the High Court was misled but counsel for the DPP (who of course was presumably acting on instructions) as to Mr Stobie’s attitude when questioned in 1990. It now appears that when the DPP in 1991 made the decision “at the highest level” not to prosecute Mr Stobie, he was not simply in possession of the Mulholland allegations but was also in possession of a confession by Mr Stobie. Incredibly he decided not to prosecute.

We have written to the DPP asking for an explanation as to why he did not prosecute Mr Stobie on the basis of his confession and why the High Court was told incorrectly that Mr Stobie had denied involvement in the Finucane murder when he was questioned in 1990. On 9th September we received a reply which indicated that the “Director does not propose to comment further on the matters which you have raised.”

More detail on this matter was revealed when Stobie applied for bail a second time on 5th October 1999. During the course of that hearing, which was essentially based on the fact that the high court had been misled on the first occasion, Arthur Harvey QC for Mr Stobie, described the approach of the DPP in failing to disclose the fact that Stobie had made admissions, as “less than helpful and indeed mischievous.” Incredibly Counsel for the DPP alleged in response to this that the DPP had made a legal decision in 1990 not to charge Stobie based on the evidence available at the time although he did admit that Stobie had made admissions in 1990.

CONCLUSIONS

Obviously all of the above issues go to the very heart of the criminal justice system in Northern Ireland and to public confidence in it. In particular they raise the most fundamental questions about the impartiality and independence of the office of the DPP. We have written to the DPP a number of occasions raising these very questions. ... Essentially the DPP is refusing to account for his decisions and is using the sub judice rule as a shield. This is unacceptable given credible allegations that his office had taken decisions which have led to the truth about official involvement in the murder of Patrick Finucane being concealed. In doing so it appears that the DPP may have withdrawn serious arms charges against an individual in order for that individual not to reveal evidence about wrongdoing by members of the RUC Special Branch. It also appears that seven days earlier the DPP refused to prosecute the same individual despite the fact that he had admitted his role in the murder of Patrick Finucane.

The challenge for the Criminal Justice Review is to ensure by its recommendations that in future a mechanism exists to call the DPP to account for decisions like the above and to ensure that it addresses legitimate concerns like those we have raised unsuccessfully with the DPP’s office. It is also vital that the Review requests and examines the relevant files in the office of the DPP to determine what safeguards need to be put in place to prevent a recurrence of this type of behaviour. The interests of the prosecutor should not coincide so exactly with those of the police. When this happens, decisions like the above are unsurprising. Unlike the office of the DPP, the independence of the future prosecutor’s office in Northern Ireland must be guaranteed. The decisions of that office must be transparent and it must be accountable to the law and the community that it serves.

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