DECISION BY PPS TO DIRECT NO PROSECUTION OF TWO RETIRED POLICE OFFICERS AND ELEVEN LOYALISTS IN RESPECT OF THE EVIDENCE OF GARY HAGGARTY.
KRW LAW LLP is instructed by several victims and survivors of loyalist attacks, an investigation into which, culminated in a series of pleas of guilty to 200 offences by Gary Haggarty on 8th September 2017, with a further 304 offences, taken into consideration. Mr Haggarty has been debriefed across 1015 separate and taped interviews.
Background
Gary Haggarty was originally approached by the HET in 2009 who advised him that they sought to arrest and charge him with the murders of Sean McParland and three other people.
This was as a result of the Police Ombudsman’s Operation Ballast report which was published in 2007. Haggarty had been living in Britain since before the report was released.
Haggarty was known to the HET at that time as having been a Registered Informant, albeit he had been stood down by Hugh Orde in 2002.
August 2009
Haggarty agreed to return from Britain to Antrim SCS whereupon he was arrested for the murder of Sean McParland. Unusually he was appointed an English solicitor to represent him in the after caution PACE interviews, whereon he was interviewed twice, solely about the murder of John Harbinson. He made No Comment interviews and was charged to Belfast Magistrates Court the following day with the murder of John Harbinson. He appeared at court with no solicitor and represented himself, and he was remanded into custody in solitary confinement in Maghaberry prison, where he would stay for the next 3 ½ years.
Thereafter, his English appointed solicitor, negotiated the SOCPA agreement which was signed in January 2010.
January 2010
From January 2010, he was formally interviewed under the SOCPA agreement and was under the debrief and challenge process. At this stage, his English solicitor withdrew from the case and Haggarty was then appointed a legal executive, from the Public Defender System in Wales.
Haggarty would then be taken from Maghaberry and flown to undisclosed locations in Britain to be interviewed about his time as an informer working for the RUC whilst moving up the ranks of the UVF.
He was interviewed over 750 times over 21 separate deployments from January 2010 to December 2011.
It had got to the stage, whereby Haggarty was again representing himself at Laganside Court and was proactively making representations contrary to those being presented by the Public Prosecutor as he felt that his evidence was not being expedited appropriately.
January 2011
In January 2011, Haggarty was frustrated with the process to the extent that he changed his solicitor to a Belfast based solicitor. As he had served over two years in prison by this stage, and had only been charged with pre GFA offences, he applied for bail.
He was then, perhaps cynically, charged with 8 further offences, which post-dated the GFA, including serious charges such as Directing Terrorism, conspiracy to import arms from the Balkans and conspiracy to murder Laurence Kincaid during a loyalist feud in 2005.
The SOCPA deployments would continue with his new solicitors, however, when they quite reasonably sought access to the transcripts for the previous 750 interviews, this was denied on the spurious ground that it would create prejudice to ongoing police investigations. This decision by PSNI undoubtedly caused serious delay to the preparation of the trial.
December 2012
Haggarty was then granted bail in December 2012, having served 3 years 3 months in custody, the equivalent of a 6 ½ year sentence, and he has been at liberty since, living in the Witness Protection Scheme.
Summer 2014
Notwithstanding the fact that he was first arrested in August 2009, PE papers were not served until the Summer of 2014, a full delay of 5 years, which is unheard of in criminal cases in this jurisdiction. Even at that, whereas 10,000 pages were served in the summer, there remained a further 20,000 pages that were still to be served. Of the 10,000 pages that were served, Haggarty’s legal team made representations to the remand review court that the papers were so heavily redacted that they were in lengthy tranches, unintelligible.
Indeed the final charges would not be refined until October 2014, when Haggarty would be charged with 212 charges with a further 304 offences, Taken Into Consideration.
Haggarty’s legal team have complained court appearances, that there is a concern that several of the 516 offences, were committed whilst the accused was in the employment of RUC Special Branch and indeed that several offences were undertaken at the specific direction of his handlers, and that as such, it may be that he was specifically directed to become involved in weapons offences, to maintain his cover, and that therefore there are concerns as to why the accused has been charged with criminal offences, especially post 1998, in circumstances whereby the handlers have not been charged with Directing Terrorism.
ALARMING QUESTIONS – Special Branch
The alarming questions that must be asked refer to the two Special Branch handlers.
They were not arrested like many others interviewed for historic legacy related offences. The two handlers who on Haggarty’s account were directing terrorism, were merely invited to attend for interview at their convenience, and were permitted to return home each night. The family of Sean McParland had been given to understand that they would be arrested, charged and have their bail opposed but that did not happen.
FAILURE TO PROSECUTE
In a letter received by several of our clients this morning the rationale for failing to prosecute 11 UVF Loyalist paramilitaries and two retired police officers Gary Haggarty had accused of involvement in murders, the reasoning for the failure to prosecute can be summarised as follows:
- That one of the Special Branch officers provided a sick line that he was off for four months, which in effect provided an absolute alibi for the allegations.
- That there doesn’t exist any Special Branch records to corroborate GH’s account
- [1] The particular allegation in this case is that the two officers passed your details to Gary Haggarty on a tacit understanding that you would then be targeted by the UVF. There is independent evidence that is inconsistent with the account of Gary Haggarty in respect of this incident and the records held by police do not record any information to support the allegations and in fact undermine his account.
- Whilst there exists the possibility that Haggarty provided information relating to this matter which was not recorded, the evidence of Haggarty alone falls far short of proving beyond reasonable doubt that the information was in fact provided. The officers concerned have both strongly denied the allegations made against them. A matter of particular significance insofar as the case against the police officers is concerned is that Haggarty made very serious allegations against one of the police officers in relation to events occurring over a period of time when OPONI investigations have identified that the officer was on long term sick leave. In all the circumstances the available evidence against the two police officers falls far short of providing a reasonable prospect of conviction in relation to any of Haggarty’s allegations against them and, as indicated above, the Test for Prosecution is not met.
- In relation to the preposterous proposal that a failure by the suspected criminal to maintain notes of his criminality, is a relevant consideration to not prosecute the criminal, we refer to the published criticisms of then Police Ombudsman Nuala O’Loan in her index report Operation Ballast, wherein she lambasted as a significant obstacle to her investigation “the generally poor standard of record-keeping within Special Branch over many years, and the failure to document, or to document properly, matters including key pieces of intelligence in relation to murders.” [2]. This was the same report found that officers provided ‘farcical answers’ which ‘indicated either a significant failure to understand the law, or contempt for the law’ [3]. What makes this issue a material consideration by the PPS an even further farce, is the fact that her recommendation arising from that found failing was accepted by the then Chief Constable, with an undertaking to effect a specific IT strategy [4] for intelligence branch and further an assurance that the effectiveness of the new procedures will be monitored to ensure that the highest standards are maintained [5].
- In relation to the Medical Certificate submitted by only ONE of the two Special Branch officers for a period of four months during which the contact between Special Branch and Gary Haggarty was alleged by Gary Haggarty, this does not come remotely close to satisfying the requirements of an alibi defence [6] in a criminal court. It is understood that Gary Haggerty had conducted several of the contact briefings by phone and in any event, in his index debriefings with PONI investigators, explicitly referred to the fact that the Special Branch officer in question had been off work for a period with an old rugby injury but that he continued to meet with Gary Haggarty during that period.
Our clients have been deprived the opportunity of having this evidence tested robustly under cross examination and openly in a criminal court, thereby depriving the victims and survivors and indeed the public the opportunity to see justice in action.
The defendants would benefit from
- bail applications,
- a right to contest a Mixed Committal,
- a right to make a No Bill application and
- a right to make a Galbraith application at the close of the prosecution case, if the evidence was so unconvincing, before being required to give evidence
- their trial interests would be protected by the legal anomaly which is a Diplock court in this jurisdiction.
Our clients concern, is that the entire process has been
- stage managed and directed to ensure that no prosecutions were ever brought,
- the fundamental premise underpinning that guarantee, being the fact that state agents and employees are a species protected from prosecution,
In relation to the murder of Sean McParland, the role of Gary Haggarty who pulled the trigger will be considered by the court at his plea and sentence on 25th and 26th October, but what of the role of the two Registered Informants who accompanied Haggarty to Skegoneill Avenue to commit the murder, and the other Registered Informant who prepared the second getaway car. Or indeed the role of the Registered Informant who selected the house for the murderous attack and perhaps most concerningly the roles of Haggarty’s Special Branch handlers who he asserts were directing him on a murderous rampage of terrorism to fulfil Special Branch’s own intelligence interests and security ambitions for the north Belfast UVF.
In relation to John Flynn, he is a survivor of not one but two murder bids on his life by the UVF. In civil proceedings brought by him, he has already established an admission from the PSNI that the RUC misused its powers in handling paramilitary agents. The PSNI has agreed to pay Mr Flynn damages for the negligent acts of the RUC, yet frustratingly the Chief Constable refuses to abide by orders of the High Court to comply with disclosure orders. With Mr Flynn now being further deprived of the opportunity of a criminal trial, the complicity of the State in two attempts on his life will remain to be a secret.
“This is the most concerning decision not to prosecute a case in court, since the failure to prosecute those officers recommended for prosecution by Lord Stevens in 2007, and the debacle surrounding the investigation into the murder of journalist Martin O’Hagan, in respect of whose murder no-one has ever been prosecuted.
That the victims and survivors are expected to accept that a Special Branch officer’s sick line for a bad back present as an absolute alibi and absolve him from criminal trial before a Crown Court Judge, is a scandalous affront to families who have waited so long and invested so much faith and trust in the present institutions.
The insult of the sick line is aggravated by the PPS reliance on the failure by the alleged criminal to maintain records of his criminality as an inverted test for corroboration, is legally astounding when one considers the explicit criticism by Nuala O’Loan in the very same case, wherein she lambasted as a significant obstacle to her investigation ‘the generally poor standard of record-keeping within Special Branch over many years, and the failure to document, or to document properly, matters including key pieces of intelligence in relation to murders’
Our clients have requested an emergency consultation with the PPS to consider what, if any, avenues of appeal are open to them in respect of what they consider to be an unacceptable and hurtful decision”.
Niall Murphy
Contact: Niall Murphy niallm@kevinrwinters.com
KRW LAW LLP
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[1] Direct Quote from PPS letter 11th October 2017
[2] See Paragraph 8.14 Operation Ballast report January 2007
[3] See Paragraph 8.5 Operation Ballast report January 2007
[4] See Paragraph 34.9 Operation Ballast report January 2007
[5] See Paragraph 34.10 Operation Ballast report January 2007
[6] Evidence in support of an alibi is defined in section 6A(3) Criminal Procedure and Investigations Act 1996 (CPIA) as evidence tending to show that: by reason of the presence of the defendant at a particular place or, in a particular area at a particular time she or he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.