About this case:

• Citation:
  [2021] NIQB 81
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Mark Horner

Background

The interlocutory application queried whether civil actions should be stayed pending the investigation conducted by Operation Kenova and any related criminal proceedings they might bring against an alleged Provisional IRA member. There was also the issue of disclosure for the civil claims.

The many plaintiffs brought proceedings seeking civil compensation for personal injuries, loss and damage which they each claim to have suffered as a consequence of the acts of Frederick Scappaticci, an alleged prominent and important member of the Provisional IRA, who it is alleged was also an informer codenamed “Stakeknife”.

The dispute before the court was whether these civil claims against Scappaticci should be stayed while Operation Kenova continues to gather information for a criminal conviction. However, the judge was quick to note that such a stay may be contrary to Order 1 Rule 1A and the overriding objective of the court to do justice.

Stakeknife’s criminal past

It is alleged that Scappaticci was acting as a double agent of the Chief Constable of the Police Service of Northern Ireland (PSNI) or the Ministry of Defence (MoD).

There are various sets of civil proceedings which have all reached different stages. However, they have all been stalled because of an inquiry being carried out by Jon Boutcher, the former Chief Constable of Bedfordshire.

Boutcher’s investigation, known as Operation Kenova, is investigating the actions of FS and his relationship with the security forces in respect of a number of heinous crimes committed in the 1980s and 1990s in Northern Ireland.

Stakeknife is allegedly linked to:

1. murders and abductions and related attempts and conspiracies;
2. state misconduct, collusion or conspiracy to pervert the course of justice connected with matters falling within (i) above; and
3. perjury, perverting the course of justice in a public office connected with events in 2003-2007.

Application to stay

Operation Kenova, which has generated over one million pages in its report on the above offences, did not want any disclosure of their research or documents being given in the civil claims, of which there were more than 30 cases. As Operation Kenova is still investigating, they wanted the civil claims stayed until they had reported their findings at the very least.

Boutcher’s objections included the following reasons:

• Once news escaped that victims and witnesses had engaged with Operation Kenova, this was likely to lead to unnecessary and unfair alarm, distress and fear about the reaction of others, and more importantly, it might also lead to actual intimidation, threats or attacks.

• It will have a chilling effect on victims and witnesses and deter engagement and co-operation. Many of those who have engaged with Operation Kenova did so only on the basis that it was carrying out a criminal investigation and was doing so independently of the PSNI.

• Disclosure could also forewarn individuals about the evidence against them, other people’s recollections and versions of events and possible lines of police questioning and inquiry. This would in turn allow suspects and their associates to destroy evidence and to pre-empt and prepare for points that may be put to them.

• The huge administrative and logistical burden that such disclosure would place on Operation Kenova’s team.

Disclosure

The court accepted that the right to receive disclosure of documents is not an absolute right and a balance has to be struck between the various rights and interests of the parties and the public interest.

However, having considered the potential damage that disclosure might cause, the judge then looked to case law, such as Al-Nashiri v Poland [2015] 60 EHRR 16, which established that the public does have a right to know what actually happened in cases such as these.

The court also considered the potential use of Closed Material Procedure (CMP) to be used in cases where the disclosure of information or evidence would be contrary to the public interest. In a CMP, “sensitive” information which would be withheld from the plaintiffs and Scappaticci can be considered at a closed hearing where they would not be present but they would be represented by Special Advocates. A CMP can be used to help overcome any problem that might arise from disclosure of material which might prejudice any criminal trial.

However, Scappaticci’s counsel and his Special Advocates opposed CMP, and submitted that Scappaticci “is clearly at risk given the claims against him and the court should not proceed by way of any ‘pragmatic’ solution which prioritises speed and expediency over justice and security”.

Outcome

The court believed that, “with the best will in the world”, the Kenova report would not be published “anytime soon”. Further, the judge agreed that there was “no detriment free route open to the court to take. Each proposed solution carries with it risks and dangers.”

However, the judge did not consider a “do nothing approach” to be consistent with the overriding objective of achieving justice and fairness.

As such, Mr Justice Mark Horner pressed on with his judgment, in accordance with the requirements of Article 6 and Order 1 Rule 1A, which require that a case be dealt with expeditiously and fairly. His judgment was handed down on 23 September and was published this week.

The court recognised that many of the offences took place primarily between 1986 and 1994. Memories fade, some of those involved in the litigation or witnesses have died, and some are not in good health. They noted that the witnesses’ ability to give cogent testimony will continue to diminish over time. The court determined that further substantial delay would affect both the nature of the testimony available to the court and the quality of such testimony.

The direction of the court was that the parties and their representatives shall meet in the next two weeks. If directions can be agreed, then they should be submitted to the court in two weeks.

Regardless of whether agreement has been reached, the case will be listed for case management within approximately four weeks. There will be a case management hearing in the week commencing 11 October. A position paper is to be filed by each party by 4 October (if required).

If agreement cannot be achieved, the judge will provide dates for the steps that have to be taken at the case management hearing so as to allow reasonable progress to be made in respect of these claims.

Mr Justice Horner stressed that, given the time that has passed, stagnation is not an option and it is in the interests of justice that reasonable progress be made, but without prejudicing either the work of Operation Kenova or any criminal trials.

Conclusion

Ultimately, the judge was of the view that even if the civil proceedings were delayed only until after Operation Kenova finally reports, it would be likely that at least some of the plaintiffs’ prospects of a fair and just trial would be irreparably damaged.

Accordingly, the judge fixed a case management hearing in the week of 11 October and directed that in the interim parties meet remotely and try to reach an agreement.