Stakeknife: the spies, the dirty war and the inquiry

Prising open the secrets of how the British agent known as “Stakeknife” was run as a spy in the IRA has been a battle of wills between the State and the police inquiry, Operation Kenova, that has spent several years trying to get at them.

The result is that the much anticipated report by that inquiry — due to be published tomorrow — may raise as many questions as it answers.

The State sought to keep as much of a lid on this chapter of the Northern Ireland conflict’s so-called “dirty war” as possible. Meanwhile Kenova, on behalf of the victims’ families — spurned by the Republican community as relatives of “touts” — has tried valiantly to get them answers.

As a member of the IRA’s Internal Security Unit (ISU), Stakeknife’s task was to root out agents and to extract confessions under interrogation, the IRA’s prerequisite for a bullet in the head. Hence the ISU’s chilling sobriquet as “the nutting squad”.

One British agent preparing another agent for death.

As the army’s pre-eminent agent, however,  Stakeknife was also expected to alert his military intelligence handlers to who was falling under IRA suspicion as a spy. They in turn were required to alert the then Royal Ulster Constabulary (RUC) Special Branch to try to disrupt the IRA’s plans. MI5 was also copied into handler reports of his intelligence.

Some 30 souls abducted by the IRA during the 1980s were executed while Stakeknife was a member of the nutting squad.

He was run by a secret unit within military intelligence known as the Force Research Unit (FRU)

Allegations that Stakeknife was so prized by his intelligence masters  that lesser agents were sacrificed to preserve his cover first emerged 21 years ago, when he was outed as a builder from West Belfast called Freddie Scappaticci. Until his death last year, Scappaticci always denied that he was Stakeknife.

A four year criminal investigation into collusion between state agents and loyalist murder gangs was just winding up – the last of three such inquiries over the previous 14 years headed by the then Metropolitan Police Commissioner Sir John Stevens.

Stevens 1,2 & 3 is estimated to have cost some £7m and generated over one million documents. And while many loyalist paramilitary members were prosecuted, including one member of the gang who murdered the Belfast solicitor Patrick Finucane, no intelligence personnel were prosecuted, despite collusion having been firmly established. Stevens’ team began a fourth inquiry into Stakeknife, but there was little appetite for this. The then Chief Constable of the Police Service of Northern Ireland (PSNI, successor to the RUC), Sir Hugh Orde, was focused more on building a police force for the future than raking over the past.  So when Orde closed down Stevens, the fruits of what they’d found were locked away in boxes.

In 2006, an NGO called British Irish Rights Watch (BIRW) attempted to get the Scappaticci case reopened by accusing  him of perjury.

Following Stakeknife’s unmasking in 2003, Scappaticci demanded that ministers publicly deny he was Stakeknife. The Government responded by deploying the so-called Neither Confirm Nor Deny (NCND) protocol, relied upon by all governments to preserve the secrecy of sensitive intelligence matters, especially the identity of agents. So Scappaticci took the Government to court by brazenly lying in a sworn affidavit that he was not Stakeknife  and claiming that under Article 2 of the European Convention on Human Rights, the Government was duty bound to reduce the danger to his life by confirming this.

At first the PSNI ignored BIRW’s demand for an inquiry into Scappaticci’s perjury. However, the evidence was so glaringly obvious that eventually the PSNI conceded.

To describe that inquiry as cursory would be to dignify it. Only when pressed did the Northern Ireland Public Prosecution Service disclose that it had found no case to answer. The PPS appears to have relied on a rarely used defence called “defence of necessity”,  after MI5 told the PSNI that Scappaticci had lied because he feared for his life.

Of course, had Scappaticci been prosecuted, the NCND policy would have unravelled.

I understand the PPS gave Scappaticci the benefit of the doubt, without the PSNI ever having questioned him under caution about whether his fear was so genuinely acute that he felt he had no choice but to lie. There was some compelling evidence to suggest that he wasn’t quite so fearful as MI5 had made out. He had, after all, chosen of his own free will to return to Belfast within 48 hours of being spirited away to a safe house when his cover was blown in 2003. And since his failed attempt to get the court to force ministers to lie by denying he had been Stakeknife, he’d gone on to swear three further (perjured) affidavits in his battle with newspapers to close down media debate about his role.

In any case, the decision not to prosecute Scappaticci meant that the several boxes of evidence, which the fledgling Stevens 4 inquiry had compiled before it was closed down, were shipped over to the Police Ombudsman’s office.

There the boxes lay until 2015. Then the newly appointed Police Ombudsman, Dr Michael Maguire, commissioned an analysis of their content. The result so alarmed Maguire that he referred the case to the then NI Director of Public Prosecutions, Barra McGrory QC. McGrory was also shocked by the material and ordered the PSNI to open a full criminal investigation into the executions in which Scappaticci appeared to have been involved, asking why the intelligence services had not always attempted to prevent these and other executions, and why there appeared to have been little or no police investigation into the murders.

Of all the previous investigations into the so-called “dirty war”, this one into Scappaticci posed the greatest reputational risk by far to the State — but also to Sinn Fein.

That’s because the evidence gathered by Stevens also extended to IRA leaders, said to have authorised executions in which Scappaticci was involved. Some had gone on to become senior Sinn Fein politicians. “If there’s any group that might be uncomfortable with this investigation, it is the IRA,” McGrory told me in 2017. “If there is an agent engaged in a series of murders, then it was the IRA who sent him out to do them.” Not only had lives not been saved that might have been; the evidence also suggested that the police hadn’t pursued Scappaticci’s fellow IRA members who’d abducted and executed suspected informers, again to preserve Stakeknife’s cover. “That is why this case disturbs me so greatly,” explained McGrory. “There’s a potential complete corruption of the judicial and legal process in so far as investigations, prosecutions and trials were concerned.”

Since the role of the Special Branch under the RUC would inevitably come under scrutiny, the investigation had to be conducted by a force independent of its successor, the PSNI.

No doubt mindful of Stevens’ experience, at first there were no takers for the job. The NI PPS had taken four years to review  prosecution files Stevens had submitted. Yet all recommendations of prosecutions against members of the intelligence services – which lay at the heart of Stevens’ investigation – had been rejected.

The PPS argued that had they been prosecuted, these officers could have mounted an “abuse of process” defence, partly because a fair trial “could not be obtained due to the passage of time”.  That advice came from Gordon Kerr QC, now Mr Justice Kerr. I understand that counsel in London who advised Stevens took a different view, but his opinion on “abuse of process” was never sought.

However, the then Chief Constable of Bedfordshire Jon Boutcher was not put off by the forlorn history of previous outside police inquiries into the machinations of the conflict’s undercover war-  not even by Sir Hugh Orde, who advised him that the job was a poisoned chalice. Ahead of him lay only a world of pain and frustration, warned Orde, with little prospect of there being much to show for his efforts. Including Stevens, there had been four previous investigations into the “dirty  war” — and not one of their full reports had ever been published.

Undaunted, Boutcher put together a hand-picked team of some 50 detectives and set off for Belfast, confident he would prevail, having previously led  several organised crime and anti-terrorist investigations for the Met Police including major post 9/11 terror plots.  And faith in his own resolve. Boutcher is a ferociously hard worker.

At first, he sounded confident when asked if he expected to secure prosecutions against  members of both the intelligence services and the IRA. He said he also planned to publish two detailed reports — one interim, and the other after the conclusion of any trials, his optimism buoyed by the fact that the Ministry of Defence signalled they were happy to co-operate. And they did co-operate – perhaps because most of the files that might have incriminated Scappaticci’s handlers in military intelligence had long since been destroyed.

It was a different story with MI5, however, a service with whom he had worked closely on previous anti-terrorist investigations.

Boutcher found that MI5 had retained many relevant files covering Scappaticci’s activities which had not been disclosed to any of the three Stevens Inquiries. Relations between Boutcher and MI5 became strained and for a while both sides lawyered up, as MI5 resisted Boutcher’s request for the files to be handed over. In the event it didn’t come to that, but the impasse contributed to long delays.

Boutcher also became frustrated in his dealings with the Northern Ireland PPS. He and his team were concerned that the PPS was not properly resourced to deal with the volume and complexity of the evidence Kenova was submitting to them. Because of the passage of time, the death of some key witnesses, destruction of some key files, finely balanced decisions had to be made over the admissibility of evidence. Even so, decisions on Kenova prosecution files were taking much longer than Boutcher had anticipated and when the first no-prosecution decision arrived, his earlier confidence that he would get to see some of his prime suspects in court took a knock.

McGrory had asked him to reinvestigate the allegation that Scappaticci had committed perjury. Having discovered that Scappaticci had signed four perjured affidavits, Boutcher was in no doubt that he had. Yet once again, the PPS had an opinion from counsel that contradicted advice Boutcher had sought from Kenova’s counsel.  Whilst acknowledging that Scappaticci had lied to the court in 2003, counsel to the PPS advised that his affidavit falsely swearing he hadn’t been an agent was not directly relevant to the issue being judicially reviewed, which was the sacrosanctity of the NCND doctrine.

By 2021, Boutcher was openly saying that he no longer considered achieving prosecutions to be the priority. His focus had shifted to providing as much information as possible for the relatives of those executed by the IRA’s “nutting squad” about the parts played by the IRA, Scappaticci and the intelligence services. And it is true that he and his officers have invested heavily in gaining the trust of the families. That trust appears largely to have been repaid.  Although the PPS have rejected the evidence in his 28 prosecution files as being strong enough to secure convictions, they have credited Boutcher with his “victim-centred focus” serving as a “model for any future legacy investigations”. After tomorrow’s publication, the surviving relatives of each victim executed by the nutting squad will get a detailed briefing from Kenova about the role of Scappaticci and the IRA and any failures in the Police investigation of their murder.

However, the published version of Boutcher’s report that will appear tomorrow will not name the intelligence personnel involved in handling Scappaticci, nor those involved in withholding his intelligence that might have saved more lives. Nor will it name members of the IRA involved in those executions, or who authorised them. And if the PPS’s explanations for their decision not to bring any prosecutions is any guide, nor will his report even name Scappaticci, but refer to him as simply “the source” underlining the reality that the NCND doctrine trumps disclosure.

On the other hand, Boutcher has emphasised that everything in his report is – in his words — “provable”. That may provoke questions about the PPS’s decision not to bring a single prosecution against  any member either of the intelligence services or the IRA, even though Scappaticci – like scores of other agents – was knowingly being run outside of a  legal framework.

For the PPS has itself acknowledged that there was a “wilful and abject failure” by successive UK governments to “put in place adequate guidance and regulation for running agents” – a failure of which ministers, officials and the intelligence agencies were well aware.

And yet, as things stand, the legacy of Kenova and Stevens is that between these two marathon investigations, staffed by hand-picked detectives costing some £45m, and spanning eight years, we are nonetheless invited to believe they turned up nothing that was likely to result in even a single prosecution of a member of the intelligence services.

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