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

"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 that 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 information is within your knowledge and in view of the real threat to my client's life I must insist on a reply by return."

The minister's private secretary replied by faxed letter dated 21 May 2003:

"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."

"This morning a pipe bomb was discovered at my clients home.  It has been removed and while police have described it as an elaborate hoax it is an extremely disturbing development.  The attack on my client is clearly a serious one and can only be seen as a result of the allegations made against him.

While leave to apply for Judicial Review has been granted there is clearly nothing to stop the Minister reconsidering these matters at this stage.  In view of this most serious development I would ask that the Minister re-visit this issue and confirm that Mr Scappaticci is not an agent of the Security Services."

The Crown Solicitor replied by letter dated 26 June as follows:

"Thank you for yours dated 24 June 2003 in respect of the above, the contents of which are noted. 

In light of the grant of leave to apply for judicial review to your client and of the contents of your letter hereinbefore referred to  I write to advise that the Minister is prepared to accede to your request that she review her original decision in respect of the matter you have raised with her.

In order to expedite this review the Minister has indicated that she is willing to consider any further representations you or your client may wish to make in relation to the issue of Mr Scappaticci's Article 2 rights.  If you wish to avail of the opportunity to make representations to the Minister you should provide these as soon as possible.  Any representations should be provided at the latest within 10 days from the date hereof.

You may be assured that anything you wish to put forward will be carefully considered in the context of the review."

"3.The Government has a long established policy in respect of the identification of agents which is relevant to the present proceedings as will appear hereafter.  The policy involves the principle that the identity of agents is neither confirmed nor denied (hence it is sometimes referred to as the NCND policy) as –

•           to confirm that a person is an agent would place that person in immediate and obvious danger;

•           to deny that a person is an agent may place another person in immediate and obvious danger; and

•           to comment either way in one case raises a clear inference the Government refuses to comment in another case that it has something to hide in that case, ie the inference will be that the individual in that case is an agent, and he may be subject to reprisals (and his life may be at risk) as a result.  It is only by maintaining the NCND policy so far as possible across the whole range of cases that this risk can be avoided.

4.It has been accepted within Government that the policy referred to above does not automatically trump every request for a comment on the identity of agents: it may be departed from in a particular case if there is an overriding reason to do so.  However the effectiveness of the policy is undermined if it is not applied consistently: the longer term consequences of any departure from the policy are properly taken into account.  Those consequences are described in paragraph 3 above (third bullet point).  Given the importance of the rights of agents (including their right to life under Article 2 of the European Convention on Human Rights) which will be jeopardised if the NCND policy is departed from in anything other than the most exceptional circumstances, the Minister (and Government generally) attached great weight to the desirability of maintaining the consistent application of the policy."

Sir Joseph Pilling went on in paragraphs 5 to 9 to deal with the way in which the Minister of State had approached the applicant's request in the present case:

"5.In respect of the decision taken by the Minister and communicated to the Applicant's solicitor by the Minister's Private Secretary by letter of 21 May 2003, the Minister took into account the threat to his life, created by the publicity regardless of whether true or not, and the ensuring obligation on Government to take reasonable steps to protect him and the totality of information available to her in respect of the Applicant's position.  This included relevant background material, the correspondence which had been received from the Applicant's solicitor, the NCND policy referred to hereinbefore and information in the form of an assessment of risk in respect of the Applicant's circumstances.  As Minister for Security, the Minister has been briefed as to the Provisional IRA's own procedures for investigating allegations that individuals were agents for the security forces, which would be pursued regardless of statements by the UK Government.

6.Having given careful consideration to all of the above, the Minister recognised that the Applicant faced a real and immediate risk to his life regardless of the truth or otherwise of the publicity referred to hereinabove.  Taking into account the particular circumstances of the Applicant's case and the basis of the NCND policy she concluded that there should be no statement.

7.In respect of the decision taken by the Minister on 17 July 2003 following a review of the case the Minister took into account the threat to the Applicant's life created by the publicity, regardless of whether true or not, and the ensuing obligation on Government to take reasonable steps to protect him and the totality of information available to her in respect of the Applicant's position.  This included relevant background material, the further correspondence which had been received from the Applicant's solicitors, the NCND policy referred to hereinbefore, information in the form of updated assessments of risk of the Applicant's circumstances and all of the papers relating to the judicial review proceedings including the judgment of Kerr J given at the leave stage.

8.As before, the Minister recognised that the Applicant faced a real and immediate risk to his life regardless of truth or otherwise of the publicity referred to hereinabove.  Taking into account the particular circumstances of the Applicant's case and the basis of the NCND policy she concluded that there should be no statement.

9.I have read the Applicant's Order 53 Statement and the affidavit of the Applicant accompanying same and wish to comment further on these as follows:

(i)Throughout the decision making processes described hereinabove the Minister has been aware of her obligations as a public authority under section 6 of the Human Rights Act 1998 and has fully taken into account the Applicant's Convention rights, especially those contained in Article 2 of the Convention.  It is the Minister's view that she has at all times acted compliantly with her obligations under the Human Rights Act 1998.

(ii)It is not the case that in any way the Minister has fettered her discretion by applying the NCND policy to this case in a rigid manner.  Throughout the decision making processes the Minister has been alive to the fact that she can depart from the NCND policy as described hereinabove if there is good reason to do so to meet the individual circumstances of the Applicant's case.  The individual circumstances of the Applicant's case have been fully considered by the Minister.

(iii)In reaching her conclusions in the course of the decision making processes described above the Minister has paid full regard to all that the Applicant has wished to put forward.  In particular, a full opportunity has been afforded to the Applicant in the context of the review of the Minister's original decision to place before the Minister any other relevant material over and above the contents of earlier correspondence to the Minister and the Applicant's affidavit and proceedings in the judicial review.

(iv)As noted above, Government policy in respect of the identification of agents operates on the central principle that the identity of agents is neither confirmed nor denied.  It is not the case therefore that there has been any authorised departure from the policy as suggested in paragraphs 11 and 13 of the Applicant's affidavit dated 24 May 2003."

(a)      the Minister of State failed to apply the Government policy in a lawful manner, in that she applied it rigidly without considering adequately the circumstances of the applicant's case and failed to give sufficient weight to the threat to the applicant's life which would ensue if she refused his request;

(b)      in refusing the applicant's request the Minister was in breach of the duty cast upon her by Article 2 of the Convention.

The applicant had also invoked Article 8 of the Convention in his grounding statement, but Mr Lavery did not press this issue, accepting that the applicant's case under this provision had been subsumed into the contentions based on Article 2.  For his part Mr Morgan QC for the respondent did not rely on the question of discretion, based on the availability of a remedy the Data Protection 1998, which had been argued at the leave hearing.  In addition to the arguments presented by the parties to the application, I was furnished with a written submission prepared by the Northern Ireland Human Rights Commission, which I gave them leave to present, and whose contents I have taken into account in considering the case.  Counsel for the Commission sought leave to intervene and present oral submissions at the hearing of the application, but after hearing the arguments presented on behalf of the parties I declined to permit intervention, since I considered that those arguments had sufficiently covered the issues before me. 

"1Everyone'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.

2Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

ain defence of any person from unlawful violence;

bin order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

cin action lawfully taken for the purpose of quelling a riot or insurrection."

(a)        a statement by the Minister denying that the applicant was an agent would have little effect upon those who threatened his life;

(b)        to depart from the NCND policy would create a serious risk to the lives of other agents and imperil the continued receipt of intelligence from agents;

(c)         the decision was one involving national security and the court should be slow to question ministerial decisions in this field.

"A good example is the question, which arose in Chahal's case itself, as to whether deporting someone would infringe his rights under art 3 of the convention because there was a substantial risk that he would suffer torture or inhuman or degrading treatment.  The European jurisprudence makes it clear that whether deportation is in the interest of national security is irrelevant to rights under art 3.  If there is a danger of torture, the government must find some other way of dealing with a threat to national security.  Whether a sufficient risk exists is a question of evaluation and prediction based on evidence.  In answering such a question, the executive enjoys no constitutional prerogative."

It seems to me clear that the issue whether an action taken on grounds of protection of the national interest constitutes a breach of a person's Article 2 rights is governed by the same principles and that the courts may not abdicate their responsibility for protecting such rights by leaving the decision to the executive.