Divisional Court: Application for injunction to restrain use of Boston Tapes dismissed



High Court
High Court

A man who provided interviews in the “Boston Tapes” project documenting paramilitary involvement in Northern Ireland during the Troubles has had his application for an injunction restraining their use by the PSNI dismissed by the Divisional Court.

Background

In 1974, Mr Anthony McIntyre was sentenced to two years’ imprisonment for membership of a proscribed organisation, the Irish Republican Army. He was subsequently sentenced to life imprisonment with a recommended minimum term of 25 years after being convicted of murder, attempted murder, hijacking, and possession of a weapon with intent to endanger life. In 1979 the recommended minimum term was reduced to 20 years’ imprisonment after Mr McIntyre appealed in respect of the murder charge.  

Mr McIntyre was released from prison in 1996, and in 2001 he became involved in the academic oral history project sponsored by Boston College, known as the “Belfast Project” or the “Boston Tapes” project.

The Boston Tapes comprise first-hand testimony by way of voice recordings from members of republican and loyalist paramilitaries, and each participant gave consent for the recordings on the basis that access to them would be restricted until after the interviewee’s death (unless prior written consent provided otherwise). Mr McIntyre also maintained that it was never envisaged that the PSNI would be able to access the contents for the purposes of criminal investigation or prosecution.

PSNI request for assistance

In 2011, the PSNI sought assistance from the US authorities in order to obtain the Boston Tapes relating to the abduction and death of Jean McConville, and despite resistance the US Court concluded that some of the materials should be provided to the authorities in the UK. In 2012, an application brought by Mr McIntyre for an injunction to prevent the PSNI from obtaining confidential archival material provided to Boston College was dismissed.

In 2014, Mr McIntyre was interviewed by BBC Spotlight about the Boston Tapes – in the interview Mr McIntyre said that by providing a taped interview to the project he had exposed himself “to exactly the same risks as anybody else was exposed to”.

The PSNI interpreted that statement as suggesting that Mr McIntyre had disclosed criminal conduct in his interview on tape, and proceeded to request that the Public Prosecution Service (PPS) issue an International Letter of Request (ILOR) in respect of a criminal investigation

In February 2015, the PPS issued the ILOR the Central Authority of the United States of America, and in 2016, the US Court ordered that portions of the interviews be made available to the PSNI. Mr McIntyre complained that there were several mistakes in the ILOR, which the Court described as being a ‘disappointing lack of care’ in the preparation of the ILOR.

Application for injunction

Mr McIntyre was granted leave by the Divisional Court to seek an injunction restraining the DPP or PSNI from taking any further steps in the utilisation of the interview materials.

In the Divisional Court, Mr McIntyre was granted leave to pursue the following grounds:

  • The DPP had no reasonable grounds for suspecting that any or all of the specified offences had been committed by Mr McIntyre or that any investigation was being carried out in respect of them in advance of the issuance of the ILOR for Mr McIntyre’s interview materials;
  • The DPP failed to satisfy himself that the doctrines of autrefois acquit and autrefois convict were not applicable to any of the specified offences prior to the issuance of the ILOR;
  • The DPP failed to promulgate guidelines or to have regard to other published guidelines relating to the proper approach to be adopted with respect to ILORs;
  • The PSNI and DPP had not acted in good faith and there was a breach of the duty of candour by the PPS, particularly in not transmitting to the US Central Authority exculpatory material provided by Mr McIntyre;
  • The PSNI had acted unreasonably by engineering an investigation into moribund offences or offences which had already progressed to conviction or acquittal for the sole purpose of obtaining the relevant materials.

In considering Mr McIntyre’s application, the Divisional Court set out the statutory conditions enabling the PPS to request assistance, namely that:

  1. it must appear to the PPS that there are reasonable grounds for suspecting that an offence has been committed;
  2. the offence is being investigated;
  3. the assistance sought is assistance in obtaining evidence specified in the request for use in the investigation.

The Divisional Court accepted that all three conditions had been satisfied.

The Divisional Court concluded that, at the time of the written request by the PSNI to the PPS in September 2014, an investigation into Mr McIntyre’s criminal involvement in the explosion at Rugby Avenue, Belfast, his possession of an imitation firearm and his membership of the IRA was ongoing and continues, and that the PSNI and the PPS sought the interview tapes for use in those investigations.

The Court concluded that the errors in the ILOR were: due to a distinct and surprising lack of care on the part of the PSNI and the PPS; not indicative of bad faith; and not material to the request except insofar as the wrong section of the 1969 Act was included and that was corrected before the Order of the US court.

Furthermore, the Court concluded that:

  • The duty of candour did not require the disclosure by the PPS to the US Central Authority of any exculpatory material put forward by Mr McIntyre;
  • The exculpatory material introduced by Mr McIntyre did not undermine the entitlement of the PSNI to investigate the matters contained in the intelligence material pointing his involvement in the offences;
  • There was no breach of the duty of good faith on the PPS and PSNI in respect of the pursuit of an ILOR request;
  • The US District Court had no role in determining whether a particular line of PSNI enquiry was appropriate and in this case the exculpatory material upon which Mr McIntyre relies was not relevant to the determination of the request;
  • As the exculpatory material did not undermine the basis of the request or suggest any bad faith in pursuing the ILOR its disclosure to the US authorities was not required;
  • There was no breach of Article 8 of the European Convention on Human Rights.

Given all of the above, Mr McIntyre’s application was dismissed.

  • by Seosamh Gráinséir for Irish Legal News

© Irish Legal News Ltd 2019



Other judgments by Sir Declan Morgan