Five retired British soldiers and seven alleged IRA members investigated as part of an inquiry into the British army’s top agent in Northern Ireland during the Troubles will not be prosecuted.
In what is the final phase of the North’s Public Prosecution Service (PPS) decisions into Operation Kenova, prosecutors announced on Thursday there was “insufficient evidence to provide a reasonable prospect of conviction” in relation to the 12 individuals.
The development is highly significant as it brings to an end the PPS examination of all 28 Kenova files – with no prosecutions in any of the cases.
It also comes a week before the long-awaited publication of the report of Operation Kenova, the £37 million (€43 million) independent investigation into the activities of Freddie Scappaticci, alleged to be the British military’s top IRA spy, Stakeknife.
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PPS director Stephen Herron said he recognised the “deep disappointment” many victims and families will have at the decision not to prosecute and “their continuing desire for information and accountability”.
In a detailed briefing document, the PPS outlined reasons for its latest decisions, which related to incidents between 1987 and 1994 – including three murders – and were contained in six evidence files submitted by the Kenova team.
The five ex-British soldiers worked as agent “handlers” for Stakeknife – referred to as “the Source” – within the British army’s Force Research Unit (FRU), a controversial military intelligence unit which recruited and ran informers.
Two of the soldiers held the more senior positions of Operations Officer and Commanding Officer within FRU.
All five allegedly failed to mitigate the “obvious risks” and take “appropriate action” in relation to the agent’s activities.
“Their priority was the welfare of the Source, to the detriment of the safety of others; and they failed to disseminate intelligence or take appropriate preventive action in the cases above in order to protect the Source,” it states.
It was also claimed they allowed Stakeknife to “participate in activity beyond which was permitted in the relevant guidance”.
The decisions not to prosecute were connected to an abduction of a victim in 1987 who was released; the abduction and murder of a victim in 1988; the abduction and murder of one victim in 1989 and an abduction of one victim who was released.
The final incident related to the murder and abduction of a victim in 1994.
The PPS said it was keen to avoid causing “any further trauma to victims and families” and had taken the decision to anonymise the cases to “to minimise the potential retraumatisation of those involved”, as had been the approach agreed with investigators to previous phases of Operation Kenova decisions.
The former head of the IRA’s internal security unit, known as the “Nutting Squad”, Scappaticci was regarded as the “jewel in the crown” of British military intelligence in Northern Ireland and is believed he was involved in up to 30 murders, including 18 where he directly carried out the killings.
Scappaticci always denied he was Stakeknife and fled to England in 2003 when the media identified him. He died last year aged 77.
Originally from the Markets area of Belfast, he was a suspect in all but one of the five files considered by the PPS, but because he is now dead no decisions have, or can be, issued regarding his alleged criminality.
The PPS director said the value of the investigation should “not be measured solely in terms of any prosecution decision outcome” and referred to the “victim-centred” focus of the Kenova investigation, which was ordered almost eight years ago.
“I am mindful that an interim Operation Kenova report is to be published by the PSNI next week and is to be followed by individual reports to families who suffered a bereavement.
“I hope that these reports will demonstrate the wider value of Operation Kenova investigations in providing answers to families and also setting out a fuller context and narrative on what are no doubt very challenging and significant issues of understandable public interest,” Mr Herron said.
Solicitor Kevin Winters of KRW Law, who represents the family of Caroline Moreland (34), a mother-of-three from Belfast who was abducted and murdered by the IRA in 1994, confirmed they would seek a review of the decisions by the PPS.
Ms Moreland’s case was among the final six Kenova files considered by prosecutors.
Mr Winters said the family are “disappointed but unsurprised” by the decision not to prosecute anyone in connection with her death.
“We have been instructed to request a review. As part of that request and consistent with a similar representation made in another Kenova case we will ask the PPS to engage on the issue of corporate criminal liability by the security forces,” he said.
“In the meantime the Moreland family want their high court civil action against the State to move on as quickly as possible. They’ve waited long enough.”
Iain Livingstone, who heads up Operation Kenova after replacing Jon Boutcher when he left to become Chief Constable for the Police Service of Northern Ireland (PSNI) last year, expressed his frustration that no case examined in the vast investigation will be brought before the courts.
He said it was “unfortunate” that the PPS comments are “once again limited again limited to those people who remain alive today”.
“I do understand why, but in doing so it only provides part of the story and excludes commentary on the main focus of Operation Kenova,” he said.
Mr Livingstone said it remains his team’s position that they have recovered a huge amount of new material and made “significant forensic breakthroughs”.
“That includes obtaining new physical evidence and repurposing existing exhibits to obtain full DNA profiles on suspects more than 40 years after they were originally recovered.”
He insisted that victims remained “our absolute focus”.
“I’m immensely grateful for the fortitude and bravery of individuals and families for coming forward and putting their trust in Kenova,” he added.
“Many have shared new and significant evidence to strengthen our investigation including physical evidence never previously shared and eyewitness accounts to help us piece together abduction and murder cases and identify those who inflicted serious injury and torment.
“I’m grateful too for the support from former Force Research Unit members who have provided statements and crucial information. Collectively this has helped us build a strong and compelling case which we are frustrated will now not be tested before a court. However, we remain steadfast in our determination to provide families with the truth about what really happened to their loved ones – and committed to sharing a huge amount of information not previously known or given to them through specific family reports.
“That process will begin next week with the publication of the interim report which is an important step in outlining the truth of what happened.”
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