"Secret justice" and "justice delayed" in the dock

A COURT case gets under way today which has the potential to transform how evidence about informants is dealt with by the courts – and the extent to which it is shared with defendants and the public.

The planned judicial review involves a miscarriage of justice dating back 20 years, featuring IRA informers including Freddie Scappaticci , a series of closed court hearings, and allegations of criminal behaviour by police officers in the original investigation.

However the focus of the action, being taken by solicitor Kevin Winters on behalf of James Martin, is the current stand-off by the Police Ombudsman, Al Hutchinson, who has failed to investigate the case.

Mr Winters believes the State and its various agencies have shown no willingness to deal seriously with matters relating to the secret justice in his client’s case nor has the State fulfilled an obligation given in the Court of Appeal nearly three years ago to investigate potential criminal conduct by police officers.

“I don’t think there is any will at all on the part of the State,” Mr Winters said, “in general terms to have the necessary apparatus, be it through the courts, be it through various institutions in order to tackle serious issues of intelligence based evidence which has resulted in wrongful convictions or indeed unlawful killings.

“That is a matter that is live, is current, is ongoing and is largely unresolved and will take some considerable time to deal with yet. So there is an obligation on the State to make this centre stage and to facilitate a process through the courts that will get the answers.”

THE CASE

James Martin, a Belfast man, was convicted in May 1991 along with six others on charges related to the IRA’s false imprisonment and interrogation of Special Branch agent Alexander ‘Sandy’ Lynch.

Mr Lynch was rescued from the Mr Martin’s home in West Belfast in a joint RUC/British Army operation in January 1990. Famously, Sinn Fein’s director of publicity Danny Morrison was one of those found guilty and imprisoned.

In January 2009 all seven defendants were acquitted at the Court of Appeal.

Kevin Winters believes Mr Martin’s case has special significance. Even though he pleaded guilty, the Criminal Cases Review Commission [CCRC] decided to refer his case to the Court of Appeal.

“They [CCRC] examined the case and they felt it was appropriate, notwithstanding the plea of guilty by Mr Martin, that the case then be referred back to the Court of Appeal in Northern Ireland,” said Mr Winters. “So from that point of view that was highly significant and somewhat unusual, it’s not typical to see a case of that nature finding its way back to the courts.“

HOW INTELLIGENCE AND SECRECY DISTORTED THE FIRST TRIAL

Winters believes that core to the CCRC’s decision was the role of informers in the case.

He says: “Mr Martin’s case relates to matters of intelligence and alleged intelligence-based evidence, so to that end Mr Martin’s case is quite distinct and unique.”

At Mr Martin’s trial in 1991, the Special Branch agent ‘Sandy’ Lynch gave evidence and he told the court that Freddie Scappaticci was his principle abductor. Scappaticci’s finger prints were found in a bedroom of the house but he was never prosecuted.

And what has subsequently been revealed is that there was certain information not disclosed during the original trial which, had it been made available, would have greatly influenced the court. But whatever that information was, and is, the State is keeping it secret.

SECRECY WHICH CONTINUES TO TODAY

Even the CCRC referral to the Court of Appeal was cloaked in secrecy. In a news release at the time of its decision, in February 2008, the CCRC said: “The reasons for the referrals have been provided in a confidential annex to the Court of Appeal and the Public Prosecution Service.”

That ‘confidential annex’ was a key element in the referral to the Court of Appeal and it was, according to Kevin Winters, crucial to the Court of Appeal decision to acquit all eight defendants.

The Appeal Court judges – Lord Chief Justice Brian Kerr and Lord Justices Higgins and Coghlin – spelled out their reasons for acquitting the defendants after reading the ‘secret’ material separately. Their 2009 judgment stated: “Having done so, each of us came independently to the conclusion that the convictions of the appellants could not be regarded as safe and the court duly quashed the convictions.”

But the Court did not disclose what it was in the CCRC’s confidential papers that brought them to this conclusion…although initially the court did consider revealing the details: “Having received submissions from the parties as to the nature of the judgment that should be given, we indicated that we were minded to deliver an ‘open’ decision since, in our view, there was nothing about the content of the annexures which, on its face, would infringe the public interest or the interests of justice if the information that had led us to quash the convictions was disclosed.

“At the request of the Crown, however, we agreed to hear an ex parte application [where the defence is excluded] that a ‘closed’ judgment (i.e. one in which the reasons for quashing the convictions are not explicitly stated) should be given. Two private hearings took place. As a consequence of material and information received by us in the course of those hearings, we have concluded that it is not possible for us to disclose all of the reasons that led to the quashing of the convictions.”

Whilst Kevin Winters, his client James Martin and all the others welcomed the acquittals, there was concern over the way the matter was dealt with in court. It was quite unique, according to Mr Winters. It was like saying, ‘We find this man not guilty but we don’t know why’.

He says: “The courts in the original trial did not have access to some serious evidential material of an intelligence nature.

“That material was at the core of the Court of Appeal proceedings following the CCRC referral. The Court of Appeal dealt with the case and whilst indicating that they were of a view that, that material which was included in a confidential annex, they took the preliminary view that there was nothing which would prevent making that available to the applicant to the appellant.

“But after a series of representations from the prosecution resulting in at least two private hearings, the court took the view that it would not order the release of that sensitive intelligence material and, in fact, directed that there be an alternative disposal to dealing with issues of concern in relation to that intelligence material. And, in particular, focusing on concern about alleged criminality on the part of investigating police.”

ROADBLOCKS TO JUSTICE TODAY

Winters’ last comment is a reference to an undertaking given in the Court of Appeal by the Director of Public Prosecutions. The court ruled that information directly relevant at the original trial had not been made available to the Director of Public Prosecutions when he made the decision to go ahead with the case.

The Appeal Court expressed the opinion that, had this information been made available to the appellants, the case would not have proceeded.

But the final paragraph of the Court ruling contains the crucial undertaking to the court from the Director of Public Prosecutions: “We wish to record that this court has been informed that, upon the conclusion of this appeal, the Director of Public Prosecutions will exercise his powers under section 35 (5) of the Justice (Northern Ireland) Act 2002 to request the Chief Constable of the Police Service for Northern Ireland to obtain and provide to the Director information relating to certain matters which arise from the report of the Criminal Cases Review Commission.

“In the estimation of the Director, these matters require to be investigated as they may involve the commission of offences contrary to the law of Northern Ireland.”

The Detail understands from sources close to the Public Prosecution Service that the Director met that obligation and referred the matter to the Chief Constable of the PSNI. The PSNI has told The Detail that it passed the case on to the Police Ombudsman for investigation.

Ever since then, according to Kevin Winters, there has been absolutely no progress…no investigation. He said it was as if the State was deliberately delaying the investigation because there was no taste to investigate the police officers linked to the original 1991 court case.

Mr Winters said: “I have been writing for some considerable time now to the authorities – the PPS and the PSNI take the view it is not their function and they have been in a position where they have simply left the matter in the hands of the Ombudsman and if you like we have had to drag the case and make it centre stage in the courts.”

The Ombudsman, meanwhile, informed Kevin Winters that he had no budget to investigate Mr Martin’s ‘historic legacy case’.

In correspondence with the Department of Justice, Mr Winters was informed that there was no budget for the Police Ombudsman because the Ombudsman had not put forward a business plan. Then on September 6th this year, Kevin Winters was told by the Department of Justice that it had now received a funding business plan from the Ombudsman.

WHAT THE NEW CASE AIMS TO DO

But by then Kevin Winters had run out of patience. He is proceeding with today’s application for leave for a judicial review on the grounds that the Police Ombudsman Al Hutchinson has failed in his duty to investigate the police officer linked to Mr Martin’s original trial in 1991.

It is contended that Mr Hutchinson unlawfully failed to investigate Mr Martin’s criminal complaint against the police and had misdirected himself by characterising the matter as an ‘historic legacy case.’ This decision was perverse, according to Mr Martin’s legal submission seeking the judicial review.

The current status of the Martin case is unprecedented, according to Mr Winters.

He said James Martin had a successful appeal following the referral by the CCRC but was not told why he was being acquitted. “To my mind that smacks of secret justice,” said Mr Winters.

“But secret justice is not good because the person before the court doesn’t have access to the reasons why he’s been acquitted. That’s not a good precedent and it is a matter of concern that still is unresolved and against that background we invited the court to have the case re-listed and the court facilitated us with that and indicated that they were minded to have the case listed again.”

The Detail has confirmed with the Northern Ireland Courts Service that James Martin’s case is relisted for mention at the Court of Appeal on November 11th along with another case against him being referred to the court by the CCRC.

This new referral by the CCRC involves the false imprisonment of another Republican informer Joe Fenton who was held for interrogation at Mr Martin’s house before being shot dead by the IRA in 1989.

Kevin Winters says James Martin’s case is important in that it could be the springboard for many other similar cases involving intelligence and intelligence gathering information. But he recognises that the PPS may often have to consider the risk to life when considering intelligence material.

He said: “Intelligence gathering … it’s a sensitive and a difficult matter and there are instances when the State quite rightly are entitled to make various applications to prevent release but it is not at a cost of a complete blanket ban on the release of such information. There has to be an element of discretion and proportionality and fairness.”

Mr Winters said there was a worrying development at Westminster this week with a bill that seeks to further extend the parameters of ‘secret justice’ not just to courts but to tribunals as well.

Aside from the civil courts, the proposals would cover immigration panels and coroner’s courts.

British Justice Secretary Kenneth Clarke introduced the proposals in the House of Commons during an evening when the House was poorly attended and when there was little opposition.

The move was prompted by American anger over a Court of Appeal ruling earlier this year which resulted in a summary of CIA intelligence material being released.

That intelligence supported the claim by a British citizen, Binyam Mohamed who had been held in Guantanamo Bay for five years, that British intelligence officers knew about the torture of terrorist suspects.

This move by the British government to create more secrecy in legal matters is the diametric opposite of the targets being set at Kevin Winters offices in Belfast. He says he is up for the fight.