By Deirdre Younge.
Freddie Scappaticci became an agent for British Army intelligence in 1978. A member of the IRA in Belfast he worked his way up the IRA hierarchy, eventually becoming second in command of the ‘Internal Security Unit”, known as the feared “nutting squad”. He joined the British Army’s newly-formed Force Research Unit in 1982. Scappaticci has consistently claimed he is not an agent called ‘Stakeknife’ or ‘Steaknife’ including in his dealings with the Smithwick Tribunal in Dublin. The latter was established to investigate allegations of Garda collusion in the murders of Chief Superintendent Harry Breen and Superintendent Bob Buchanan in South Armagh, after they had left a meeting in Dundalk Garda Station in March 1989.
Operation Kenova investigating the agent believed to be Scappaticci has submitted files to the Public Prosecution Service in relation to perjury charges.
Scappaticci had an extensive engagement with the Smithwick Tribunal set up in 2005 which reported in 2013. Though he did not give sworn evidence his legal team argued on his behalf that he was not an agent called ‘’Steaknife’ or ‘Stakeknife’.
Through letters obtained through Freedom of information requests to the Lord Advocate of Scotland and the Attorney General of England and Wales it is clear that Scappaticci obtained protection from prosecution or immunity in relation to his interactions with Smithwick from the Lord Advocate of Scotland. He did not not receive a similar immunity or amnesty from the Attorney General of the UK despite Smithwick’s assertions that witnesses from the UK and Northern Ireland had received such protection.
Documents obtained through Freedom of Information requests to the (Irish) Department of Justice show Scappaticci was paid his full legal costs of 382,270 euro in 2015. The bills were paid by the Department of Justice, signed off by the Department of Public Expenditure.
The Letter from the British Attorney General.
The absence of such an amnesty has enormous implications in light of perjury allegations against Scappaticci in relation to his continual denials that he is an agent called ‘Steaknife’ or ‘Stakeknife’. It also calls into question the decision by the Smithwick Tribunal, set up in 2005 by Dail Eireann, not to reveal details of covert meetings with him and the decision by the Irish State to pay Scappaticci nearly 400,000 in legal costs, primarily to claim he was not a British Military Intelligence and MI5 Agent called Steaknife or Stakeknife. Senior legal sources assert that Scappaticci spent three days in Dublin talking to the Tribunal. Documents released by the Department of Justice under FOI in relation to substantial legal costs paid to him in 2015, indicate extensive interactions between Scappaticci and the Tribunal.
Smithwick on amnesty
In the opening chapters of his 2013 report Judge Peter Smithwick has a chapter on amnesty for witnesses and the legal cover afforded by the Irish Tribunals of Evidence Act as follows:
Any witness before the Tribunal would have protection in this jurisdiction from criminal prosecution on the basis of evidence given before it. The protection is enshrined in section 5 of the Tribunals of Inquiry (Evidence) Act 1979 which provides as follows:
A statement or admission made by a person before a Tribunal or when being examined in pursuance of a commission or request issued under subsection (1) of section 1 of the Principal Act shall not be admissible as evidence against that person in any criminal proceedings (other than proceedings in relation to an offence under subsection (2) ( c ) (as inserted by this Act) of that section) – ( and that is a reference to the offence of providing false testimony to the Tribunal) and subsection (3) of that section shall be construed and have effect accordingly.
The Judge went on to explain how witnesses from outside the jurisdiction could be provided with legal cover, particularly those from Northern Ireland and the UK –
“However, given the cross-border aspects of the Inquiry, it was equally important to securing the attendance of witnesses that such protection be extended to the United Kingdom. The Tribunal therefore sought and received an undertaking from the then Attorney General of England and Wales, the Right Hon.,The Baroness Scotland Q.C., to similar effect. Subsequent to the devolution of policing and Justice powers to Northern Ireland on the 12th April 2010, Sir Alistair Frasier, the Director of Public Prosecutions for Northern Ireland confirmed that he would continue to honour Baroness Scotland’s undertaking. After the change of Government in the United Kingdom…the new Attorney General of England and Wales..Dominic Grieve Q.C M.P provided the Tribunal with confirmation that Baroness Scotland’s undertaking would continue to apply. The Tribunal subsequently, at the request of Freddie Scappaticci, sought and received a similar undertaking from the Lord Advocate, in relation to Scotland. This was given in terms specific to Mr Scappaticci..”
(Page 9, the final Smithwick report, 2013).
Judge Smithwick went on to to refer specifically to Scappaticci in the one and only reference to him in the Tribunal report, as follows :
The Tribunal subsequently, at the request of Freddie Scappaticci, sought and received a similar undertaking in relation to Scotland. This was given in terms specific to Mr Scappaticci..
The Lord Advocate of Scotland in his role as Crown Prosecutor gave Freddie Scappaticci an amnesty to cover his interactions with the Smithwick Tribunal so that he could provide “a full account” to the Tribunal in 2012.
The AG of England and Wales it is now apparent gave no such amnesty to Scappaticci.
Other witnesses from the UK and Northern Ireland included Scappaticci’s former FRU, British Army Intelligence handler, retired Major David Moyles, other British army officers, as well as ex RUC and PSNI officers. Witnesses also included representatives of the IRA ASU who talked to the Tribunal from 2008 onwards.
Scappaticci’s solicitor first made an application for legal representation in 2006 but this was refused
However his legal representative, Belfast solicitor Michael Flanagan submitted his first bill in relation to meetings in 2007.
Like all Scappaticci’s covert interactions with the Smithwick Tribunal, information about these meetings were withheld from other interested parties at the Tribunal.
By May 2011 the Tribunal decided that Scappaticci would get limited legal representation which was later to develop into full legal representation. He had now been brought into evidence by the various assertions of Ian Hurst, a former Sergeant in the British Army’s Force Research Unit who put a ‘statement’ online in 2011 containing various allegations concerning Scappaticci.
Kevin Fulton whose real name was Peter Keeley, a former FRU, RUC and PSNI Special Branch agent and informant also implicated Scappaticci in his statements and evidence in December 2011. He had already described Scappaticci, who he called ‘Michael’ in his book ‘Unsung Hero’ and claimed that he (Keeley) had acted as a driver for the Internal Security Unit including Scappaticci and John Joe Magee.
In evidence he accused Scappaticci of involvement in the abduction of Louth farmer Tom Oliver in July 1991. ( See ‘Smithwicks Secret Witness’ for details of these allegations ). Scappaticci emphatically denied involvement in Oliver’s abduction and murder. Kenova is investigating the murder of Mr Oliver and has recently appealed for witnesses to come forward.
Most Importantly Scappaticci received legal representation to deny claims that he was not the British Agent known as Steaknife or Stakeknife.
In July 2011 Judge Smithwick made a ruling as follows :
“He (Scappaticci) has consistently denied these allegations and maintains that denial. Nevertheless the public may identify him with ‘Stakeknife’. Mr Flanagan argues cogently that he should receive all documentation in relation to the ‘Stakeknife’ allegation so that his client may disprove the allegation once and for all and secondly, so that his client has the opportunity to test such evidence as that could impact on the credibility which the Tribunal ultimately attaches to the witnesses who made this allegation”.
Scappaticci was awarded legal representation accordingly.
In a final legal submission given to the Tribunal on his behalf in 2013 Scappaticci himself claimed that Smithwick extended legal cover primarily to allow him to claim he was not an agent called Steaknife or Stakeknife.
Scappaticci’s British Army Intelligence handler during most of his career as a Force Research Unit (FRU) agent, Major David Moyles, giving evidence in April 2012 about Agent Steaknife (his spelling), was clearly answering questions about Scappaticci. In particular in response to ex-FRU Sergeant Ian Hurst’s assertions that Scappaticci was a Garda handler, he denied that the agent had ever given him information relating to Gardai colluding with the IRA or had given prior warnings relating to the IRA ambush of Chief Superintendent Harry Breen and Superintendent Bob Buchanan in March 1989.
At the end of Witness 82, Moyles’ cross examination, Scappaticci’s Junior Counsel Ms Fitzgerald reiterated Scappaticci’s denials in a somewhat surreal exchange:
Q – I am aware, Mr Chairman, of the witness’s position that he won’t confirm or deny. I merely want to ask him if he is aware of the fact that my client has always and continues to deny those allegations that he was in fact a British agent.
A – Sorry I don’t know who your client is.
Q – I appear for Mr Scappaticci.
A – OK.
Q – . .Witness 82. So you will be aware of those allegations I am sure. And are you aware of the fact that my client has always and continues to deny those allegations ?
A – I believe that is in the public domain..
At the end of the Smithwick Tribunal Scappaticci was awarded his costs, signed off by the Secretaries General of the Departments of Justice and Public Expenditure. They were cut almost in half by the State Claims Agency. A heavily redacted document also referred to one meeting with Scappaticci in the UK but the rest of the paragraph, presumably relating to other contacts, was redacted.
After the Tribunal Owen Corrigan took a Judicial Review against certain assertions in Judge Smithwicks report. The fact of Scappaticci’s involvement was highly relevant new evidence. The solicitor for the Tribunal denied emphatically he gave ‘evidence’ in the following terms –
“Without prejudice to the relevance..we can confirm that Mr Scappaticci did not provide evidence to the Smithwick Tribunal. Mr Scappaticci ( who is outside the jurisdiction) would not cooperate in providing evidence. He declined to provide a signed statement to the Tribunal and declined to give oral evidence”.
These assertions are highly reliant on a strict definition of evidence which in the context means a signed statement or sworn evidence. It is evident the Tribunal withheld important information from lawyers.
In Belfast, as part of its investigation into Agent Steaknife or Stakeknife, Operation Kenova under Chief Superintendent Jon Boutcher submitted files relating to perjury to the PPS. One of those files is believed to relate to Freddie Scappaticci.
Frank Mulhern, whose son Joe was murdered by the IRA internal Security Squad in 1993 and who received information from Scappaticci about the manner of his death, is now appealing the PPS’s decision not to proceed to prosecution on the Scappaticci perjury file through his solicitor Kevin Winters of KRWLaw.
In the High Court in Belfast Judge Horner has refused to grant Operation Kenova’s application (September 23) that a stay be put on civil proceedings in relation to ‘historic crimes’ committed by FS – the ‘alleged agent Stakeknife’. That ruling will no doubt have relevance in relation to perjury allegations against Scappaticci. Judge Horner’s ruling means that 25 civil cases against the Chief Constable of the PSNI and the Ministry of Defence in relation to the activities of ‘Stakeknife’ can now proceed.
The response of the Attorney General of England and Wales to the FOI request about Scappaticci begs questions about who is prepared to defend his activities and whether or not he may escape behind any new legislation proposed by the British Government in an attempt to draw a line under legacy investigations, before the full grim truth of Scappaticci’s grisly activities is revealed.
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