High Court of Justice in Northern Ireland Queen's Bench Division Decisions

"I have been instructed by Mr Fred Scappaticci to make the following public statement.

A number of most serious allegations have been made about my client in the press since Sunday. My client denies each and every one of these allegations. He is not 'Stake Knife'. He has never been an informer, has never contacted the intelligence services, has never been taken into protective custody and has never received any money from the security services.

My client is the victim of misinformation, apparently emanating from the security forces and disseminated by the press. Mr Scappaticci is an ordinary working man living in West Belfast and as such has no means at his disposal to combat this onslaught of false allegations.

Clearly, his life has been placed in danger as a result and he is now in hiding. He has not been arrested and no attempt has been made by the police to speak to him about any of the matters referred to by the media. He has not been contacted by the Stevens investigation team [a team of police officers investigating allegations of collusion between members of the security forces and paramilitary bodies].

Mr Scappaticci has been compelled to issue this statement as a result of the intense media speculation about him. In the interest of protecting his privacy no further statement will be issued at this time."

"Mr Scappaticci appears here today to give the lie to continuing media speculation as to his whereabouts. He has not been in England and during the course of the past few days has not left Northern Ireland. My client refuses to engage in challenging every statement made by an unnamed and apparently unnameable security source. He repeats the contents of his statement released yesterday and in particular confirms that he is not and never has been in any sort of military, security or police custody. He has never been involved in any criminal activity, and has a clear record.

Mr Scappaticci was forced to leave his home on Sunday morning, not by reason of police or army activity, nor by involvement of any paramilitary organisation but solely because of the media onslaught upon his character.

The media coverage of this story has been reckless and extremely damaging to my client. A huge volume of very detailed but completely unsubstantiated allegations have been published by all branches of the media with absolutely no regard to Mr Scappaticci's position or the harm which such publication could cause him and his family.

I have been instructed to examine all the material recently published with a view to defamation proceedings.

The past three days have been very traumatic for Mr Scappaticci who now intends to resume his private life."

"I act on behalf of Freddie Scappaticci. You will be aware that my client has recently been the subject of extensive press allegations and in particular the specific allegation that he is an agent working on behalf of the security services within the IRA and operating under the code name "stake knife" otherwise "steak knife". My client has expressly denied these allegations through this office and in person.

The vast majority of the press and media reports have quoted extensively from "security sources" and "Whitehall sources" for their information. In addition the press reports have published what would appear to be police and army archive photographs of Mr Scappaticci.

You will of course be aware that my client's life and the lives of his family members have been endangered by these reports. By reason of your position you are uniquely placed to confirm that my client is not the agent "Stake knife/Steak knife". I understand that when asked to comment on the Stake knife controversy that both you and the Secretary of State have refused to comment on it as a security matter. My client has no interest in identifying this agent but only wishes to establish this point in order to protect his own life.

It is clear that the government has a duty to protect the lives of its citizens including both at common law and under article 2 of the Convention of Human Rights. I must therefore ask you to confirm that my client is not the agent named "Stake knife" otherwise "Steak knife". I am satisfied that this is information within your knowledge and in view of the real threat to my client's life I must insist on a reply by return."

"Thank you for your letter to Jane Kennedy dated 19 May regarding your client Freddie Scappaticci. I have been asked to respond on her behalf.

I can only reiterate that the government does not comment on intelligence matters, including the identity of agents."

"Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law."

"115. The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see the LCB v United Kingdom judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, para. 36). It is common ground that the State's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual."

The Court recognised, however, that this duty did not require the state to act in every case where a risk to life might be said to exist. At paragraph 116 of its judgment the Court said: -

"… such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising.

…

In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person (see para. 115 above), it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual."

[20] Mr Morgan's riposte to these submissions was to suggest that there was no evidence that any undue delay would occur. The agencies required to service any application under the 1998 Act were those who would be required to advise the minister on the applicant's request for the confirmation that he was not an informer and there was no reason to suppose that they could not act as promptly in response to an application under the Act as in reaction to the latter request.

"… an application for judicial review is the procedure, so to speak, of last resort. It is a residual procedure which is available in those cases where the alternative procedure does not satisfactorily achieve a just resolution of the applicant's claim".

The general rule that an applicant for judicial review should demonstrate that there is no effective alternative remedy is subject to some important qualifications, however. These were discussed by the Court of Appeal in this jurisdiction in the case of Re Director of Public Prosecutions for Northern Ireland's application [2000] NI 174. At page 178 the Court said: -

"The trend of modern authority is to be more ready to look at the balance of cost and convenience between an application by judicial review and resort to an alternative remedy: see, eg, R v Huntingdon District Council, ex p Cowan [1984] 1 All ER 58 at 63, per Glidewell J. That approach was expressed in paras 14 and 15 of a valuable article by Beloff and Mountfield in [1999] JR 143, in which the learned authors attempted the same type of principled analysis (the general dearth of which is lamented in Supperstone and Goudie Judicial Review (2nd edn), p 15.27) as was made in the context of immigration cases by Laws J in R v Secretary of State for the Home Department, ex p Capti-Mehmet [1997] COD 61. They considered the case-law and referred to the effect of the new [English] Civil Procedure Rules:

   '14. On the one hand, the "overriding objective" is to enable the court to deal justly with the cases before it. This would suggest that technical questions of whether some other avenue ought to have been pursued will not be viewed favourably if there is little detriment to the respondent in the case proceeding along the existing route, there is a public interest in the matter being determined by way of judicial view, and pursuit of the alternative route would cause further cost and delay.

15. On the other hand, what is the most efficient and convenient remedy will be determined having regard to the interests of other litigants and the overall administration of justice, not just the interests of the applicant and respondent before the court. Thus, convenience to instant litigants should not be permitted to disrupt the apt distribution of cases.'

The authors summarise their conclusions in para 18 of the same article, in a passage with which we fully agree:

'(a) The existence of an alternative statutory machinery will mean that courts will look for "special circumstances" before granting an alternative remedy.

(b) There are, however, a number of factors which may amount to "special circumstances", and the court should be astute not to abdicate its supervisory role.

(c) What is the most efficient and convenient method of resolving a dispute should be determined having regard not only to the interests of the applicant and respondent before the court, but also the wider public interest.

(d) Whether the allegedly alternative remedy can, in reality, be equally efficacious to solve the problem before the court, having regard both to the interests of the parties before the court, the public interest and the overall working of the legal system.

(e) In determining the most efficacious procedure, the scope of enquiry should be considered. It may be that fact-finding is better carried out by an alternative tribunal. However, if an individual case challenges a general policy, the relevant evidence may be more readily admissible if the challenge is brought as a judicial review: an allegation that a prosecution is unlawful because brought in pursuit of an over-rigid policy can scarcely be made out on the facts of one case.

(f) Expense of the alternative remedy or delay may constitute special circumstances."