Jack the Ripper: The Secret Police Files (41 page)

In brief the names shown in that report relate to the following:

Freddie “Stakeknife” Scappaticci, who ran the IRA’s notorious “death squad” while working for the security services as an informer.

Joseph Fenton, codename “The Driver”, shot dead by Scappaticci’s squad in February 1989.

Charles McIlmurray, Special Branch agent “Sealink”, abducted and killed by Scappaticci’s gang in April 1987.

This report reveals how an IRA team set out to shoot McIlmurray and his two Special Branch handlers in Belfast, but aborted when they spotted a police traffic car.

A further article obtained which was relevant to that report which contains references to Scappaticci, contained details of another specific informant as disclosed by an unnamed security service handler. This also suggests that the named informant who was, in addition to providing information, alleged to have been actively engaged in criminal activities to which the security services turned a blind eye and encouraged him to continue. According to the article the information given by the handler had been corroborated by another unidentified handler.

All of these articles make it crystal clear the police cannot possibly give any guarantee strong or absolute to an informant that their details will never come into the public domain.

I had hoped that once the police had sight of my written statement and saw the content of my documentary evidence they may choose to consider their position in the appeal. I would doubt they would want some of my evidence being released yet again back into the public domain. It certainly would not show the police in a favourable light and could in fact have a negative impact on the recruitment, and retention of informants.

The police stated that if the names of informants are released from the ledgers and registers it may deter informants from coming forward or force current ones to desist and withdraw their services. However, I would suggest that some the aforementioned examples I have mentioned are far more likely to have a detrimental effect on informer recruitment and retention than the releasing of the surnames and pseudonyms of a handful of informants contained in 125 year-old ledger and register.

In the course of my case preparation I managed to obtain the details of the written policy on disclosure operated by MI5 in connection with amongst other issues the naming of informants. This contains no mention of the perception the Metropolitan Police seemed to have that releasing informants names would deter others from coming forward, nor was there any mention of any fears that might force current informants/agents to suddenly withdraw their services. I also ascertained that MI5 since 2000 have been constantly releasing files to The National Archives, which contain the names of informants/agents under what would appear to have been an unwritten 100-year rule. Against that Special Branch (Counter Terrorism) last released files to The National Archives in 2000.

CHAPTER THIRTEEN

THE FREEDOM OF INFORMATION HEARING PART 2

Finally my file of evidence and my witness statements were complete and I submitted it to the Information Commissioners whose responsibility it was to prepare a full file based on all parties’ evidence and then to serve each party and the tribunal their full copy. However, I would not be allowed to get sight of any witness statements or any documents the police would be using in any closed session, or allowed to be present when any of that evidence was presented to the tribunal.

Eventually I had served on me a file of evidence from the police, which they were intending to rely on during the hearing. This was made up of correspondence and internal memos from the then Special Branch Office and most of it dated 2003. There were several internal memos from Clutterbuck to one of the previous police witnesses in the Butterworth hearing, Yvette Arnold who it would appear is now and was then a civilian member of staff.

In those memos to her Clutterbuck clearly states that in his opinion the names of informants from the register and ledgers should be made public and for them to be sent to The National Archives in accordance with the policy adopted by other security agencies. In her reply she is of the opinion that the non-disclosure policy should remain the same. Although she does say that if this policy is challenged then it should be reviewed in each individual case.

Clearly that didn’t happen in any of my requests. In one of the memos she also refers to a process known as “Privileged Access”. This is where privileged researchers are allowed to view unexpurgated documents on agreeing to sign a written undertaking. Clearly again I was not allowed to do this despite in my very first Freedom of Information request saying I was prepared to sign a written undertaking.

Another internal memo was from a Commander Pearce (now retired) who it would seem signed the memo and endorsed Clutterbuck’s views on the policy change and also the sending of the register and the ledgers to The National Archives. All of these memos were then forwarded to a Commander Black who replaced Commander Pearce as head of the department. It clearly can be seen that he also was in agreement that the Special Branch policy should be brought in line with the policies of other government agencies as far as public disclosure was concerned. It would appear that for whatever reason this was never applied.

Furthermore, the police were not producing any documentation, which corroborates any decision not to change their policy. I was very surprised that the police had served these documents on me as part of their case and they were intending to use this in evidence as some of the content of these letters and memos I felt would help to strengthen my case.

Having assessed and evaluated the contents of those memos and letters I still felt it vitally important to try to get Clutterbuck on my side. I could now see his integrity being questioned and with the press attending the hearing this might cause him problems with his current employers. In view of all of this I made one last-ditch attempt to try to get him to assist me and in doing so giving him the opportunity of answering the allegations being levied against him. Again he declined to reply to any of my emails or telephone calls.

I eventually had sight of the witness statements of witnesses the police would be calling to give their evidence in open session. They made it clear some parts would be given in closed session. There were no surprises, all the same police witnesses who gave evidence in the Butterworth hearing would be doing the same save for one police officer who they gave the name to me and later indicated that he was to remain anonymous and his evidence given behind a closed screen.

Having read the statements it was apparent that they were going to rely on nothing more than mere words to support their objections. To this end they were relying on each witness to corroborate other witnesses when identifying the concerns and personal beliefs they had highlighted in their witness statements.

In addition they were seeking to rely on relevant legislation to support their arguments that legislation being Sections 24 and 30 (2) of the Freedom of Information Act. Section 24 related to national security issues and is explained as follows:

Information is exempt from disclosure if the exemption is required for the purpose of safeguarding national security
.

The authority may obtain a certificate from a minister certifying that the exemption is required
.

It is not sufficient for information to relate to national security matters; disclosure must pose a real threat to the interests of national security
.

The exemption is subject to a public interest test
.

Clearly I had raised a public interest factor as part of my appeal notice and would argue that any national security issues raised by the police did not pose a real threat to national security.

Another part of the legislation they were seeking to rely on was Section 30 (2), which creates an exemption for information:

Which is, or has been held for the purposes of a criminal investigation
.

Which is, or has been held for criminal proceedings conducted by a public authority; or
,

Which was, obtained or recorded for various investigative functions and relates to the obtaining of information from confidential sources
.

Section 30 provides a class based exemption. This means it is not necessary to identify some prejudice that may arise as a result of disclosure in order to engage the exemption.

As the exemption is subject to the public interest test, a public authority must consider whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information. Although you do not have to identify some prejudice in order to engage the exemption, it will be an important factor when applying the public interest test.

My main argument in relation to this part of the legislation was that the register in particular was nothing more than an index, which related to original documents, which would have come under the above definitions.

There were a number of concerns I had with the police evidence leading up to the case. The judge in his earlier direction had directed that all documentary evidence should be served by March 11th 2011. After all of these exchanges the police still produced documents outside of the specified dates.

One such document I believed would be invaluable to my appeal and when I received it I couldn’t believe my luck. The document in question was classed as confidential and related to the recruitment of modern-day informants. It set out a number of conditions the police would accede to as well as setting out what was expected of an informant, (Picture 17).

One particular paragraph, which was interesting and most helpful was the paragraph directed at the informant, it simply read, “
We will protect your identity”
. There is no mention in that document about protecting the identity above and beyond their lifetime. Nor is there any mention of doing the same in relation to relatives or descendants in the present or the future. I saw this document as the new changed policy on informants, which I believe had been introduced following discussions referred to in the internal police memos of 2003 previously discussed, where there was talk of changing the policy which was in existence at that time.

My own personal view of all of the evidence I had amassed and submitted was that it took the police by surprise. I firmly believe that they were of the opinion that they simply had to turn up in force at the hearing to be able to secure a victory. This was the reason I believe that they were forced to try to introduce documents outside of the original directions in an effort to prop up their case. My beliefs were confirmed by events that took place both on the day before the hearing commenced and events of the morning of the hearing.

Right from the outset I had concerns about the evidence the police were going to give in closed session and voiced my concerns to them and the commissioners as well as the tribunal judge. My concerns must have had an impact on the police because the day before the hearing they served on me a statement from the police officer who was going to remain anonymous and was to be referred to as DI D, the police had previously indicated that he would be giving all of his evidence in closed session.

On reading his statement I could clearly see that none of it met the criteria for being heard in closed session in any event. It was clear their plan was for him to give all of his evidence in closed session thereby depriving me of the opportunity of being able to cross-examine him.

The day before the police gave notice that they were intending to introduce a second additional statement from one of the witnesses Supt. Julian McKinney who was head of Covert Intelligence, the department within the police, which deals specifically with informants. The police indicated it was to be given in closed session. I gave notice to the judge in advance that I would be objecting to the late submission of the statement.

May 10th 2011 saw the opening of the hearing proper. However, 30 minutes before the hearing commenced the barrister representing the police served on me a number of stated cases, which he was intending to seek to rely on with a view to allow the submission of the second and late statement of Supt. McKinney.

Having not had any time to peruse these or to study them in any detail with a view to adding to my basic representations I had to rely on the judge to interpret them in a way he believed was right and proper given the legislation the police were seeking to rely on.

The outcome was that the judge stated he was legally bound to allow this statement to be tendered as evidence. However, he realised my concerns over the closed session evidence and ruled that with one exception this statement could be given in open session and I was given a copy.

This statement confirmed what I thought, that the police at this late stage were still looking to prop up a case they thought they now might lose. The statement in question was all hearsay and related to an unnamed officer from one of the other unnamed security agencies confirming their policy on the non-disclosing of the identities of informants. I would seek to use this to my advantage at a later stage during cross-examination of the officer and would ask why there was no specific statement from that officer himself or why was he not produced as a witness to give his evidence first-hand?