UPDATE: Freddie Scappaticci has passed away but Operation Kenova’s work goes on. Jon Boutcher’s first report is completed and on the PSNI’s ‘desk’. Now he is Chief Constable of the PSNI, Boutcher has left a decision on its publication to a designated police officer.
SECOND UPDATE: The PSNI have announced they will publish Operation Kenova’s first report on Agent Stakenife in March.
THIRD UPDATE: The PPS NI has decided there will be no prosecutions as a result of the Operation Kenova investigation. A first and last report will be published on March 8th.
Thus far MI5 have not intervened to halt the publication of the report.
In 2016 Chief Constable Boutcher, then Head of Bedfordshire Constabulary was asked by the (former) Chief Constable of the PSNI George Hamilton to conduct an investigation into the activities of an IRA man being ‘run’ as a British Army Agent reported known as Stakeknife. He was specifically tasked to look for “evidence on which to base criminal charges on the agent himself and others implicated in his activities”. Boutcher and his team are now investigating up to 200 cases given their own operational titles.
Stakeknife was believed to be Army Intelligence agent and IRA ‘high executioner’ Freddie Scappaticci whose interrogations and alleged murders were carried out North and South of the Border. Operation Kenova has submitted over 30 files to the Public Prosecution Service in Northern Ireland dealing with the alleged murders, kidnappings and brutal interrogations allegedly carried out by the ‘internal sécurity’ unit of the IRA and allegedly Scappaticci while being run by British Army Intelligence Corps/MI5. Since he was ‘exposed’ in 2003 Scappaticci had consistently denied he was the agent, including at the Smithwick Tribunal. The chances of the DPP Northern Ireland Stephen Herron initiating prosecutions on foot of files submitted by Operation Kenova is regarded as slim.
Legacy legislation
The British Government’s ‘Legacy’ legislation the ‘Northern Ireland Troubles (Legacy and Reconciliation) Bill’ was passed by the British Parliament. It is fundamentally aimed at protecting key members of the Security Forces and agencies, some of whose members went on to hold very senior leadership roles within their organisations or are in distinguished retirement. It also effectively protects senior members of the paramilitaries who gave the orders. It proposes new structures for ‘information retrieval’ instead of the Courts. Former Army Intelligence officers argue that it’s not just about protecting the security establishment but also the ‘Peace Process’. Can there be too much truth for a still divided society to absorb? .
The legislation will bring an end to all ‘troubles’ litigation including civil actions against the British State. Cases already in process in the legal system will continue. Victims and relatives of those killed say it takes away their human right to seek justice. The effect of the legislation is to prevent the intelligence services from being implicated in the actions of the agents embedded in the IRA, UVF and UDA who ordered or often carried out the state directed killings. More importantly it protects the High Officers of State who preferred not to give clear orders to its officers in the field. It’s now apparent that the British State secretly recognised that murder was carried out under its aegis in certain circumstances.
Other cases
Kenova is also investigating a particularly murky period in the 1970s involving multiple murders by British Army Intelligence and RUC directed Loyalists – the killing spree carried out by what became known as the ‘Glennane gang’ in Armagh and Tyrone and the Republic in the mid to late 1970s. ‘Operation Denton’ is not a criminal investigation, rather it will result in an ‘analytical review’. That has proved problematic in terms of agreements with the Gardai over intelligence sharing in relation to the Dublin Monaghan bombing but the issues appear to have been resolved.
Operation Kenova is investigating the cases of three RUC officers blown up by the IRA on the Kinnego Embankment in Armagh in 1982 just prior to what became known as the ‘Shoot to kill ‘ incidents in Armagh and Tyrone.
South of the Border Jon Boutcher agreed to examine the case of the Louth farmer Tom Oliver kidnapped and shot dead in 1991. His battered body was found in Belleeks, Co Armagh. The ‘kidnapping’ of Oliver was described by Peter Keeley the FRU/MI5/RUC agent in evidence to the Smithwick Tribunal in December 2011. Keeley was the driver for the “nutting squad” when they operated out of Dundalk and drove Tom Oliver to his interrogation in a hired van.
Boutcher has appealed for information in relation to Oliver’s kidnapping and murder but by now must have a clear understanding of how and by whom he was murdered. A number of investigations of the Oliver case over the years by senior Gardai have come to nothing.
There is no indication that Operation Kenova will be exempt from the British Government’s determination to put an end to investigations into the operation of the various intelligence services in Northern Ireland and the court actions both civil and criminal in contested cases. The ‘Legacy’ legislation may very well see the guillotine come down on Kenova.
Stakeknife
The core of Operation Kenova’s mission is the investigation into Agent Stakeknife or Steaknife initially recruited in 1978 by an army intelligence officer in the Devon and Downshire regiment in Belfast. The alleged agent Scappaticci became second in command of the ‘Internal Security Unit’ aka the ‘Nutting Squad’ under John Joe Magee, a former member of the Special Boat Service who joined the IRA in the early 70s.
Scappaticci became the IRA’s dark harbinger of death. He was run by the British Army Intelligence unit the Force Research Unit and M15 from 1982 until 1990. His handler, now retired Major David Moyles returned to duty in the UK in March 1990. In 1990 FRU was superseded by the Joint Services Group. Though it appears Operation Stakeknife had come to an end it would seem Scappaticci was still a valued agent of the Army Intelligence. The GOC, John Wilsey, and the Head of Army Intelligence Colin Parr met him in Belfast to reassure him of their support in 1993 when he became concerned that the investigation led by John Stevens was about to expose him. Scappaticci was only ever arrested, in 2009, on a pornography charge. He was presumably interviewed on multiple occasions.
Dangers
Operation Kenova is treading on dangerous ground and has the unhappy precedents of Stalker and Stevens. Any investigation that moves to arrest agents and their handlers must also implicate their bosses – senior members of Army Intelligence, the RUC and MI5. It also brings under scrutiny the actions of the Joint Intelligence Group and the cabinet itself.
Jon Boutcher says his first report on the Stakeknife investigation will look at:
Generic high-level themes and issues and concentration on organisations, rather than individuals and confirm at a high level of generality and without going into specifics..findings about what was and was not happening during the Troubles as between (a) organisations (b) the Provisional IRA and its Internal Security Unit (c ) the police, armed forces and Intelligence services (d) their agents and informants….
The broad brush approach adopted by Boutcher may seem anodyne but reaction to even the ‘protocols’ that Boutcher intends to adhere to indicate the possible problems that lie ahead.
Those interviewed by Kenova have been impressed by the knowledge and determination of investigators; however some sources in the UK say rumours in ‘Whitehall’ are that the investigations will not be allowed to expose the British State including members of MI5 present and retired, British Army Intelligence officers and the RUC and PSNI to criminal prosecutions. Chief Superintendent Boutcher has the unenviable job of balancing the forces of the ‘Deep State’ with those who have suffered at its hands.
Like the attempts to expose the full horror of child abuse carried out by state agents in Kincora and other children’s homes in Northern Ireland the 1970s and later, Operation Kenova’s exposure of the activities of Agent ‘Steaknife’ as PIRA’s chief Executioner, with a possible gruesome murder count of 40 people, would have massive reputational implications for the British State.
Operation Kenova finished the main intelligence gathering part of his investigation into Stakeknife some years ago. Jon Boutcher has so far submitted 33 files to the Public Prosecution Service. The DPP Stephen Herron now grapples with possibly unresolvable decisions over the prosecutions of former members of the IRA, British Army intelligence and the former RUC Special Branch. It is not known if Jon Boutcher has made a recommendation on the files. What is known is that four people will not go forward to prosecution on charges of perjury. One of those is believed to be Scappaticci the other a former member of the prosecution service.
Stevens v Army Intelligence
Comparisons can be drawn between Operation Kenova and Sir John Stevens’ long running investigation into Brian Nelson, a UDA intelligence officer and British Army Intelligence agent which began in 1989 after allegations of collusion in the murders of solicitor Pat Finucane and Loughlin McGinn in February and August of 1989.
Scappaticci was arguably a more significant figure than Nelson as a long running penetration agent who allegedly had the power to remove whomever handlers deemed unhelpful to their long term aims. (It can be surmised what they were). Nelson was the UDA’s Intelligence officer who fed gunmen targeting information – much of it RUC collator material which was leaking out of UDR and police stations after the Anglo-Irish Agreement of 1985. In Loyalist hands the RUC documentation provided a lethal target for those who were identified as ‘of interest’. In his first report Stevens focused his attention on British Army Intelligence not the RUC.
Writing to the Chief Constable in April 1991 after he had spent two years trying to obtain intelligence documents from the RUC and British Army Intelligence – which initially denied the existence of FRU, Stevens was sceptical of ‘lifesaving’ claims for agent Nelson by Army Intelligence:
“There is no doubt whatever, from the lengthy evidence that we have obtained over this.. period that action was taken in only two cases to protect the potential victims of Protestant Loyalist assassinations, ( Adams and T/02 ). In other cases information received from Nelson was so old that it was used for record purposes ( in other cases three or four days after the event ) or of such low quality as to be not worthy of special consideration. Statements have been taken from those RUC SB officers to whom information concerning Nelson would have been passed. They were asked if they could name any individuals whose life had been saved as a direct result of Nelson’s information. It should be made clear that not one could state any other names than the two previously mentioned’.
RUC Special Branch’s Head Brian Fitzsimons seemed to have convinced Stevens that the FRU was the enemy. Special Branch responses to Stevens seemed to give the lie to the claims of Army’ intelligence that they had passed over their agents valuable intelligence to Special Branch in a timely manner with the expectation that they would act on the known threats.
Documents published in the de Silva Report (2012) which passed between an unnamed senior member of the Army Intelligence Corps, the Commander Land Forces and the GOC, showed the depth of hostility between British Army Intelligence/FRU/the GOC and the RUC, particularly Special Branch. Senior Army Officers also reserved some scorn for MI5 and their “officers of dubious quality”. They believed John Deverell, the Director and Coordinator of Intelligence, who was MI5, would inevitably side with RUC Special Branch as they needed the police to operationalise Security Service plans.
In a memo marked ‘Secret’ published in part 2 of the de Silva Report, a senior Army Intelligence officer claimed that it was the RUC who ignored the vital evidence that FRU operatives and agents had put themselves at risk to obtain. The memo also refers to the ‘montage investigation’ – a reference to hundreds of RUC documents leaked to the UDA many of which came into Nelson’s possession.
Reportedly Operation Kenova and now the DPP are having the same problems fixing the blame for Stakeknife and his actions between ‘agencies’.
In Stevens’ case in his first report he concluded that Brian Nelson had strayed outside his orders and could therefore be personally prosecuted without dragging in his FRU handlers.
That defence was to be repeated by Scappaticci’s handlers and bosses one of whom was the now infamous Brigadier Kerr (called ‘Colonel J” in the Stevens Report quoted below) who ran FRU in the 1980s. Kerr submitted a statement in the Brian Nelson prosecution, part of which was quoted in a document written by an Irish diplomat in 1992 which gave an analysis of the first Stevens report. The now familiar themes were emerging that the information was shared with the Special Branch who had the power and authority to act on it. The responsibility, according to Kerr, also brought in higher authorities including “Security desk officers” (MI5) and he added significantly “obviously the Secretary of State might have an interest in some of the reports”. (Quote from Kerr in a memo written in 1992 by a diplomat in the Anglo Irish Secretariat in Belfast,National Archives of Ireland.)
Stevens in his first report seemed to skirt around or not be aware of the fact that much of the material reaching Nelson was RUC CID collator notifications and intelligence which came out of local police stations in the mid to late ‘80s. This was ‘normal’ material in the context of police operations but lethal in the hands of the UDA. These leaks were constantly referred to by the Irish Government as being a threat to cooperation between the two police forces under the Anglo-Irish Agreement. The intelligence material was consistently finding its way into the hands of Loyalists.
In another document published by de Silva also marked ‘Secret’ which originated with the Army Intelligence Corps, a memo intended for the GOC via the Commandeer of Land Forces, laid out Army Intelligence arguments: –
Secret
GOC ( through CLG)
INTELLIGENCE IN IRELAND
1.The Chief Constables assertion that Nelson did not provide life saving intelligence whilst acting as an army agent is deeply disturbing. The very detailed records kept by FRU show quite clearly that 638 separate threat warnings directed against 217 individuals were passed on to the RUC Special Branch.
2. On no occasion were the FRU ever challenged on the validity of this information. Is the Chief Constable now maintaining that we were allowed to risk our FRU soldiers lives (and that of an agent who has already been tortured once) in gathering what the Special Branch regarded as worthless intelligence “.
In the secret memo the British Army asks the same question of the RUC Special Branch as Stevens asked of the Army in a report in 1990:
5. Questions
- Were individuals warned? If they were where is the evidence?
- Apart from Gerry Adams, were no operations mounted to protect lives that were under threat from PPMS, regardless of whether they were PIRA, INLA or ordinary Catholics…. Could the Chief Constable weather an investigation into the possible negligence of his Special Branch to take the appropriate action to save lives? Probably not.
de Silva himself in his report seemed to be convinced by Army Intelligence’s arguments that they had warned RUC Special Branch of threats to individuals in a timely manner –
All of the questions raised by Stevens can also be applied in the Scappaticci investigation.
Boutcher pivots
His criminal investigations into Stakeknife seemingly finished Boutcher and Operation Kenova pivoted to ‘information retrieval’ aimed at providing relatives and victims of Scappaticci and others with information about how their loved ones died. This may be commendable and a satisfactory end point for some but Boutcher’s appointment by the Chief Constable was not information retrieval; it was to establish whether there was “evidence of the commission of criminal offences by the alleged agent known as Stakeknife, including but not limited to, murders, attempted murders or unlawful imprisonment”. Ultimately the test is whether there will be prosecutions.
In one significant and unusual intervention in Dublin Freddie Scappaticci’s long term handler, Major David Moyles, gave evidence at Smithwick as witness 82. Referring only to an agent called “Steaknife” (Moyles’ spelling) who was clearly Scappaticci, Moyles responded to some of the evidence given by ex-FRU Sergeant Ian Hurst about Scappaticci and allegedly collusion with Gardaí. Moyles emphatically denied these assertions in February 2012 after Hurst had given evidence.
One of the many contradictory and wild allegations emanating from Hurst and others about the late Sergeant Owen Corrigan was that he gave information to Scappaticci and that Scappaticci was his “handler”. Hurst claimed this allegation would be given in evidence by Peter Keeley ex-FRU agent. Keeley himself emphatically denied this when he gave evidence. According to Moyles:
To the best of my knowledge, Steaknife was not connected to, knew of, or was responsible for obtaining information from Garda Corrigan or any other member of An Garda Siochana. As Steaknife’s designated handler at the time I consider it to be extremely unlikely that he could have conducted a relationship of the nature alleged without my knowledge….nor was Steaknife party to information that may have been used in planning or undertaking the PIRA operation or indicted that the PIRA operation was mounted information provided by a member of Garda Siochana. (David Moyles aka witness 82 at the Smithwick Tribunal, 2012.)
Major Moyles, like “Colonel J” and other more senior officers many years earlier, made it clear that all the intelligence obtained from Scappaticci was immediately handed on to RUC Special Branch:
Intelligence obtained from Steaknife was also disseminated, after every debriefing, in written form, exclusively for the Head of SB at HQ RUC Knock in Belfast. I, or a member of my team, personally delivered the intelligence to the RUC’s E9 Department, specifically to Chief Inspector redacted an officer whom I greatly respected and trusted implicitly. Relevant information was also delivered ‘Exclusive for’ the Regional Heads of Special Branch [RHSB] in Belfast, Armagh, Londonderry as necessary. Where intelligence was time critical – deliveries to the RHSBs were made by hand. Retired Major David Moyles, witness 82 at the Smithwick Tribunal
The Glennane Gang
As mentioned earlier Operation Kenova is investigating the ‘Glennane Gang’ series of murders under the heading ‘Operation Denton’. A HET report on the murders carried out by the Gang’ [in reality a group of RUC men allied with former and present members of the UDR led by UVF ‘Commander’ Robin Jackson who led a murder squad in Armagh in the 1970s ] was left unfinished. Despite Mr Justice Treacy ordering an overarching criminal investigation into the Glennane series of murders in 2014 no such investigation had taken place.
The then Head of Legacy investigations in the PSNI ACC, then Deputy Chief Constable, Drew Harris was heavily criticised for the failure. As Garda Commissioner since 2019 Harris is now the Irish Government’s liasion with Operation Kenova in relation to ‘Operation Denton’ and in particular the files on the Dublin-Monaghan bombs and other murders carried out south of the border. Harris now has the keys to the Garda Intelligence ‘Vault’. Kenova’s decision to draw up an analytic report rather than carry out a criminal investigation in the case of Operation Denton was problematic according to the Garda Commissioner.
The Garda contribution is significant. From the late 1960s onwards Garda Special Branch officers in strategic locations on the Border including Dundalk and Monaghan gathered intelligence on Loyalist activities North and South of the Border which was passed on to C3 – Crime and Security – in Garda Headquarters in Dublin. One of the most important sources of information on the ‘Glennane Gang’ , as it became known, was Dundalk Special Branch Sergeant Owen Corrigan. In December 1976 Kays Bar in Dundalk was bombed on the same night as Donnellys Bar in Silver Bridge, Co Armagh. Corrigans efforts to get the cooperation of the Belfast RUC CID in the investigation of the Dundalk bombing by members of the Glennane Gang and so called Red Hand Commandos led by Jim Hanna and Robin Jackson, met with a stone wall when RUC Special Branch intervened.
Chief Superintendent Frank Murray, Head of RUC Special Branch in Armagh, notorious even among his peers, was the central figure in RUC Special Branch in Armagh. Grievously maimed in an IRA bombing, Murray pursued the IRA with zealous dedication. He is believed to have been UVF Commander Robin Jackson’s long time handler. Murray died in 1996 two years before Robin Jackson.
Recently one former senior PSNI officer claims that when an RUC investigation into a ‘very senior member of the UVF’ in Armagh in the late ’80s was on the verge of an arrest, the lead investigating officer was suddenly transferred to Belfast. A week later after uprooting his family and resettling in a new house, he received a threatening call from Murray with the warning “that will teach you to f**k with me”.
With no formal agreements in place the exchange of information between the Gardai and the RUC often depended on personal relationships.
In 1976 Robert Nairac was reported missing by the British Army in Bessbrook and later murdered near Ravensdale. Owen Corrigan for the Dundalk Gardai and Brian Fitzsimons Special Branch head in Newry – later to become Head of RUC Special Branch – conducted the investigation into Nairac’s death. His body has never been found. Nairac plays an important part in the Glennane story.
Corrigans C77s as Garda Special Branch intelligence documents are known are some of the most important of the ‘troubles’ intelligence trove.
It’s ironic that retired Garda Sgt Owen Corrigan was to find himself in the Smithwick Tribunal accused of collusion with the IRA until the then PSNI Deputy Chief Constable Drew Harris made a last minute intervention.
Protocol responses
In a recent response to the Kenova draft proposals Garda Commissioner Harris pointed out that the basis on which Garda intelligence was to be given to Kenova had changed significantly with Boutcher’s proposal to carry out an ‘analytical review’ of the murders included in Operation Denton. Agreement had been reached with AGS that intelligence would be given over for the purposes of a criminal investigation in a tightly drawn agreement under the UK Crime (International Cooperation ) Act, 2003. In effect, said Harris in his response to the publication of Boutcher’s draft protocol (which is the road map to the publication of a first report) Kenova has created a “legal void with regard to the exchange of information between An Garda Siochana in relation to the ‘analytical review’”. Not only that but Kenova’s intended procedures only provided for security checking of its reports by the UK security organisations. Kenova was in danger of straying into a critique of Garda investigations with no authority to do so.
Jon Boutcher published his response to Commissioner Harris (below). There will be no camping on the AGS lawn by Operation Kenova drawing conclusions about Garda investigations. Intelligence will be used strictly as per written agreements.
Matters having been resolved it now appears Garda files of intelligence have been given to Operation Kenova dealing with the activities of the Glennane Gang including the Dublin Monaghan Bombings and other bombings and murders carried out in the South.
The publication of any report by Operation Kenova could in itself create legal problems according to the submission of the Emeritus Professor of law and former Chair of the Human Rights Commission Brice Dickson who responded to the consultation phase of the proposed report. While praising Kenova’s efforts Dickson wondered how lawful it could be to publish a report as Boutcher was said Dickson, in danger of prejudicing any potential prosecution based on his findings:
To be honest I find it hard to imagine that a report such as you are envisaging, even if it is at the ‘high level’ you describe, will not be at risk of falling foul of the rules of contempt of court and perhaps also of those on perverting the course of justice. When your interim report is published, if the PPS is still considering whether or not to prosecute some individuals based on the files you have already submitted or, worse still, are already in train and a judge is conducting a trial, I would think there is a strong chance that the DPP or the judge depending on what stage the proceedings have reached, will feel that the interim report may be a document which could sway the decision making process whether to prosecute and/or to convict. (Emeritus Professor Brice Dickson.)
Boutcher responded to Dickson’s perceived danger of prejudicing any criminal justice process:
The protocol is designed to help avoid such an outcome and I am committed to working with PPSNI, PSNI and ( to the extent it is deemed appropriate ) PONI to achieve this objective.
As Boutcher’s initial tasking was essentially to conduct a criminal investigation some queried the point of Boutchers proposed reports:
A number of consultees queried or disputed my power to publish reports at all. The first point to note is that I will not be publishing anything myself. Rather I have been commissioned by the PSNI to prepare and provide it with reports which it will then publish. Accordingly the legal basis for my reports report depends on the PSNI having power to
- Prepare and publish public facing reports
- Delegate the preparation of such reports to others.
Nuala O’Loan the former Police Ombudsman for Northern Ireland, one of Operation Kenova governors recently asked the central question in a contribution to the House of Lords – when will a decision on criminal prosecutions be made and how can the new Legacy investigations be justified?:
Collusion
Then there is the contested issue of collusion which in the case of Steaknife is multifaceted. Scappaticci interrogated many agents who were working for the British state when they met their brutal end at his hand. Some were allegedly killed to protect other more important agents. Some entirely innocent people were accused and “confessed” under torture to add to Scappaticcis vicious reputation or protect more valuable agents or informers.
Boutcher responded:
A number of consultees also urged that the protocol should include a definition of “collusion” or outline a proposed approach and related matters. I do not think this is necessary or appropriate because the protocol is only concerned with matters of process.
Endgame
While shortage of staff and heavy workloads can be cited there are bigger considerations at play which add to scepticism that prosecutions of any of Scappaticci’s handlers will take place. On the evidence of de Silva, British and Irish State Papers and evidence given to the Smithwick Tribunal, the principle of mutually assured destruction is in play between British Army Intelligence, MI5 / Director and Coordinator of Intelligence and former RUC Special Branch officers. Scappaticci’s death ensures that he will never have to appear in court – in the unlikely event that any charges would ever have been brought against him. There is an expectation that ultimately the State will use its powers to protect against reputational damage
Boutcher responded to fears that the Government would use the security checking phase of the pre-publication phase to amend or suppress unwelcome findings or conclusions. He thought it unlikely to happen but if it did he would resist it –
Firstly I cannot conceive of any circumstances in which we would seek to include material which is the subject of a valid National Security objection in any report.
Secondly I accept that Kenova cannot determine the validity of such objections and accept that the Government’s assessment of them will always deserve special respect and weight by reason of its constitutional and institutional competence and expertise. However the Government cannot determine the validity of its own actions – only the independent judiciary can do that and it would not be right to suggest otherwise in the protocol.
Can the British State accept the reputational damage that would follow for British Intelligence if the full horror of their murderous agent was revealed ? He committed the most heinous crimes of murder, torture, betrayal of innocent people and removal of inconvenient or ‘burnt’ agents. The effect on the politics of Northern Ireland is incalculable. Many of those who gave the orders to Scappaticci and his fellow Internal Security apparatchiks are alive and well and in positions of power while the battered victims lie cold and dead.
In reality Operation Kenova’s first report is likely to be its last, even if Kenova can finalise and publish before the guillotine of the new Legacy legislation comes down on investigations and criminal prosecutions. The chances of prosecutions are slim – more so with the passage of time. Operation Kenova and Jon Boutcher’s contribution may be that it gave the relatives and survivors of victims information about their deaths that they may not have received otherwise. In the real world that may be consolation enough.
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