CLOSED MATREIAL PROCEDURES AND THE LEGACY OF THE CONFLICT IN THE NORTH OF IRELAND
Last week in the High Court in Belfast a date was set for the first stage in a hearing regarding the use of a controversial Closed Material Procedure (CMP) in a civil case relating to the Conflict in the North of Ireland.
Margaret Keeley, the wife of British agent Peter Keeley who infiltrated the Provisional IRA during the Conflict on behalf of British Security Forces, was subject to threats and intimidation when abducted by the PIRA notorious ‘Nutting Squad’ lead by Freddie Scappaticci, himself an alleged British agent and informer. Margaret Keeley was similarly detained by the RUC and interrogated in order to protect the identity and cover of her husband.
Margaret Keeley is now seeking damages for her suffering and an explanation of the role British Security Forces, their agents and informers in her abduction and interrogation. She is suing the Ministry of Defence (MOD), the PSNI on behalf of the RUC and Freddie Scappaticci. Last year the PSNI and the MOD both applied for the action to be subject to a Closed Material Procedure (CMP) because evidence will be tested which concerns National Security. A CMP means only the judge and an appointed Special Advocate of behalf of Mrs Keeley will see all the evidence and it will be not tested in open court by the parties to the action.
CMP applications by state agencies are now pending in a number of Conflict related Legacy civil actions in addition to being applied for in the public law challenge against the Secretary of State in her decision not to order a statutory inquiry into the Omagh Bombing 1998.
In February the arguments on CMP in the Margaret Keeley civil action will be heard in Belfast in a case being bought on her behalf by KRW LAW LLP and lead by leading human rights barrister Danny Friedman QC of Matrix Chambers in London. Whilst the application for CMP cannot be challenged as the decision rests with the presiding judge and CMP was made into law by the Justice and Security Act 2013, what can be argued is both its applicability to Conflict related Legacy actions and whether there are the procedural safeguards and mechanisms in place to protect the interests of Margaret Keeley in accordance with the Common Law principles of fairness, natural justice and the presumption of openness in court proceedings.
CMP was originally introduced as a government measure to counter the threat of contemporary Islamist extremism, one of part of a series of draconian measures which controversially undermine civil liberties. CMP was not envisaged as being applicable to Conflict related Legacy cases such as that of Margaret Keeley. It now appears that the government, in its quest for maintaining secrecy around some of the most unpalatable aspects of “The Dirty War” that characterised many aspects of the Conflict in the North of Ireland, is prepared to use CMP to maintain that secrecy and to close down a route to truth, justice and accountability.