Two former British soldiers and two alleged Provisional 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.
The North’s Public Prosecution Service (PPS) announced on Tuesday there was “insufficient evidence to provide a reasonable prospect of conviction” in relation to the four individuals.
Prosecutors considered six files reported to them by 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.
Evidence on these files related to 10 different incidents which happened in the early 1980s, including four murders.
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[ Stakeknife: The inside story of IRA double agent Freddie ScappaticciOpens in new window ]
The two ex-British soldiers investigated by the Kenova team worked as agent “handlers” for Stakeknife within the British army’s Force Research Unit (FRU) – a controversial military intelligence unit which recruited and ran informers.
The retired soldiers allegedly failed to take “preventive action” in relation to the agent’s activities.
It was also claimed they allowed Stakeknife to “participate in activity beyond which was permitted in the relevant guidance”.
The decision not to prosecute the four individuals related to an abduction and murder in1981 as well as an abduction and murder of a second victim in the same year.
Other incidents included an abduction in which the victim was subsequently rescued in 1981; a conspiracy to abduct one victim in 1981; the abductions of four victims in 1981, one of whom escaped and three of whom suffered a kneecapping.
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 re-traumatisation of those involved”, as had been the approach agreed with investigators to previous phases of Operation Kenova decisions.
To date, 28 files have received by the PPS in relation to the vast Kenova inquiry. A decision by prosecutors in relation to six further files remain outstanding.
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.
Victims’ families have said Scappaticci often showed up at their doors and played recordings of their loved ones’ final words after being tortured.
The long-awaited interim report on the Kenova findings is due to be published next month, almost eight years after the investigation began under Jon Boutcher, who is now chief constable of the Police Service of Northern Ireland (PSNI).
Scappaticci 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.
Stephen Herron, the North’s Director of Public Prosecutions, said he appreciated that today’s decision “will no doubt cause upset and pain” to families.
“I can offer reassurance that these decisions were considered impartially and wholly independently by an experienced team of senior prosecutors, who were assisted by independent counsel,” he said.
Decisions on the six outstanding files will be issued by the PPS at the end of February.
In a statement, Iain Livingstone, who now heads up Operation Kenova, said it was “important to stress that these decisions relate to individuals supplementary to the focus of the operation - the activities of an alleged army agent code-named Stakeknife.
“The position remains that Kenova presented strong and compelling evidence in relation to that individual. This material has formed the basis of our family reports as well as the Kenova interim report which is due for publication on March 8th 2024,” he said.
“Legacy investigations and prosecutions can be extremely challenging, but I understand that today’s decisions will be deeply disappointing. We remain committed to delivering the truth to the families affected by these decisions through individual family reports which will detail our investigative findings in addition to the interim and final Kenova reports.”
Solicitor Kevin Winters of KRW Law, who represents families affected, said they would seek a review of the decisions by the PPS.
Mr Winters said the outcome was “no surprise” as it was “depressingly consistent with all previous decision making”.
“We say the decision making here requires much further scrutiny. To that end we are pushing ahead with reviews and ultimately potential judicial review litigation… This is not a good day for justice. The pressure on Kenova to deliver has just escalated.”
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