‘He was the Golden Egg, something that was very important to the Army. We were terribly cagey about Fred’ – General Sir John Wilsey ex GOC N.I 2012.
Jon Boutcher’s first report for Operation Kenova, an investigation into an agent called Stakeknife or Steaknife, now known to be the late Freddie Scappaticci, has passed the security checking phase. This was the process by which the British Government’s Cabinet Office and the various intelligence services vetted the report for any risk to ‘national security’. It has passed, said Boutcher, without redactions or cuts and is about ‘process’ that is it will not lay blame. The Cabinet Office had already given a response to Boutcher’s draft protocol for publication. [Jon Boutcher is now Chief Constable of the PSNI.]
The report has now been passed on to the Public Prosecution Service of Northern Ireland to make sure it does not put any future prosecutions in jeopardy. The head of the PPS NI Stephen Herran is grappling with around a thousand witness statements/files in relation to possible prosecutions of a number of individuals. However, as he has advised that prosecutions arising out of Operation Kenova are unlikely, the report should be published shortly.
Up to his recent death Freddie Scappaticci denied he was the agent known as Stakeknife or Steaknife, a position he maintained since he was publicly unmasked in 2003.
Scappaticci’s denials were apparent when he asked Judge Smithwick to grant him legal representation in 2006 after the setting up of the Smithwick Tribunal into Garda collusion in the murders of Chief Superintendent Breen and Superintendent Bob Buchanan. They were murdered by the IRA after being ambushed on the Edenappa Road in South Armagh in March 1989.
This article asks why and how Judge Smithwick forced the Irish State to pay Scappaticci to claim he wasn’t Stakeknife or Steaknife.
Scappaticci’s denials are at the crux of allegations of perjury against him. They also form the starting point for an overarching investigation that turned into Operation Kenova.
The Mulhern Case
In August 2017 Belfast man Frank Mulhern applied for a judicial review of a decision made by the Public Prosecution Service (N. I.) not to bring a prosecution against Freddie Scappaticci for the offence of perjury. Mr Mulhern’s son Joseph had been murdered in 1993 in what the High court described as ‘circumstances associated with the activities of the Provisional IRA and the British Army agent known as “Stakeknife” ‘. Mulhern, a 23 year old Belfast man, had been interrogated by the so-called “nutting squad”, the IRA’ s ‘internal security’ unit, and was subsequently shot dead. His body was found at a remote hillside near Castlederg in Co Tyrone. Frank Mulhern described how shortly after his son was shot he was told by Freddie Scappaticci how he had died – that he was first shot through the back of the neck and then through the head. Mr Mulhern through his Belfast solicitor Kevin Winters sought successfully to have his son’s case reinvestigated by the PSNI.
PSNI Serious Crime Branch reopened the investigation into the murder and forwarded an interim report to the Northern Ireland DPP in January 2016. Meanwhile Operation Kenova was set up after a decision by then Chief Constable George Hamilton to bring in an outside police force to investigate the alleged multiple murders of an agent called Stakeknife widely believed to be Scappaticci.
The Chief Superintendent of Bedfordshire Constabulary Jon Boutcher was requested by the PSNI to carry out the investigation into Agent ‘Stakeknife’ . He later agreed to take on the Joe Mulhern case which would fulfil the requirements of the PSNI to carry out an Article 2 investigation into Mulhern’s murder under the Human Rights Convention. It’s unclear what if any role in the IRA’s Security apparatus Scappaticci had by 1993 the year of the murder.
Scappaticci recruited
Scappaticci had been recruited as an British Army informant by in the late ’70s. He was then run by the Force Research from 1982 (Unit) until 1990. FRU wrapped up in 1990 as a result of the Stevens Inquiry into the Brian Nelson case which showed the intelligence officer of the UDA was being run by British Army Intelligence during a killing spree. The successor unit, the Joint Security Group, was led by ex FRU Officer George Victor Williams who died in the Chinook crash of 1994 having reached the rank of Lieutenant Colonel. Though Scappaticci appears to have remained a valued agent Operation Steaknife ended with the return of Major David Moyles, Scappaticci’s longtime handler to the UK in March 1990.
So why and how did Scappaticci the alleged notorious agent end up being paid legal costs amounting to hundreds of thousands of pounds to assert he was not the agent called Steaknife or Stakeknife at a Dublin Tribunal by its Chairman Judge Peter Smithwick, costs which were paid through the Department of Justice in 2015. Bizarrely two years after the granting of his costs (2015) Operation Kenova submitted files containing allegations of perjury against a number of people, one of them allegedly Scappaticci precisely because he argued he was *not* the agent.
Jon Boutcher described his meetings with the late Judge Smithwick in a warm eulogy available on Operation Kenova’s website. Is it possible they did they *not* discuss why Smithwick became so convinced that Scappaticci was telling the truth that he deserved an award of nearly 400,000 euro in legal costs in order to make that denial?
The present Garda Commissioner Drew Harris in his role as Head of Legacy investigations in the PSNI was the liaison between MI5, the PSNI and Smithwick. It is inconceivable that he didn’t know of Scappaticci’s meetings with Smithwick. How did he advise the judge? According to his own evidence he had consulted with MI5 the morning he came to give evidence. Scappaticci’s FRU handler Major Moyles also came to Dublin to give evidence which clearly identified Agent Steaknife (his spelling) as Scappaticci.
The covert involvement of Scappaticci in the Dublin based Smithwick Tribunal, from 2007 is worthy of investigation since no one, except the Tribunal Judge and lawyers have any idea what information or Intelligence Scappaticci – the British Army’s top spy – passed to them. The withholding of such information was a grave injustice.
But back to Frank Mulhern’s Judicial Review. As a result of the court action sensitive and important material was revealed. Mulhern’s legal team KRWLaw in Belfast submitted new evidence to the Court, including a letter to them from the Director of Public Prosecutions Northern Ireland Barra McGrory, which revealed that Scappaticci was considered to have committed perjury in denying he was agent Stakeknife or Steaknife as far back as 2003. The letter reads as follows :
“The Director has asked me to reply to your letter of 16th May 2017.
You will appreciate that the PPS is unable to make any comment on the suggestions in your letter as to the identity of the agent codenamed Stakeknife.
It is correct however that an individual was reported to the PPS in 2006 for the alleged offence of perjury during court proceedings in 2003 involving the individual referred to in your letter. While it was considered on the evidence, that perjury was committed, the view was taken that the individual concerned had a viable defence of necessity and a ‘no prosecution’ decision issued.These matters are now the subject of investigation by Operation Kenova and it would be inappropriate to comment further”.
Scappaticci, Smithwick and the Attorneys.
The facts of the Mulhern case make the decision by Judge Smithwick in 2014, to award Scappaticci nearly 400.000 euro in legal costs, incurred in order that he may defend his reputation and fight accusations he was Agent Stakeknife or Steaknife, questionable if not bizarre. Also questionable is the withholding of the intelligence that he shared with them in relation to the allegations of collusion levelled at some former Garda witnesses. Allegations Scappaticci’s military handlers denied existed in Army Intelligence files.
Who protected Scappaticci?
Freddie Scappaticci gets a cursory mention in the Smithwick Report published in 2013. It’s now become apparent that Scappaticci in fact had extensive secret engagement with the Tribunal, including face to face meetings with the Judge and legal team which were not revealed to the other lawyers at the Tribunal. For a public tribunal to withhold details of a vital witness is wrong. The only mention of Scappaticci is in the final report (2013) in a paragraph dealing with the question of amnesty or immunity from Prosecution for witnesses outside the jurisdiction. Judge Smithwick refers to immunity given to witnesses at the Tribunal by Attorneys General in England, Wales and Northern Ireland and notes that cover for UK citizens was also extended to Scotland at the request of Scappaticci.
This is a reply to FOIs submitted to the AG of England and Wales and separately and below the Scottish Crown Office and Procurator Fiscal which asked when asked if Scappaticci had an amnesty or immunity from Prosecution in relation to evidence given at Smithwick.
Scappaticci and legal costs
The brief reference to Scappaticci in the Smithwick Report is deceptive; material released under FOI by the Department of Justice – who paid legal costs for the Tribunal – show that by the end of proceedings Scappaticci’s lawyers comprising Solicitor, QC and Junior Counsel were paid nearly 400,000 euro (reduced from a demand for just under 700,000) in order that he could rebut accusations that he was the notorious agent.
The fact that Scappaticci was believed to have committed perjury years earlier makes the decision derisory in light of the fact the Smithwick Legal team had private meetings with both Scappaticci and his handler and depended heavily on the British Security Services cooperation. Even more questionable is the withholding of any intelligence or information gleaned from this most important agent from the legal teams, and of other witnesses.
Intelligence seen at the Tribunal indicates how much useful information he could have given. Scappaticci was observed by the Gardai operating around Dundalk and the Border region since 1982 when he and his then handler had joined the newly formed FRU. Noted in another intelligence document as attempting to take over a unit run by an IRA man in Louth in the early ’80s he was also described as the coordinator of North-South operations. He had an address just outside Dundalk as well as Belfast. As was documented in Eamon Collins’ book “Killing Rage”, Scappaticci regularly plied his grisly trade as Deputy to the head of “Internal Security” the so called “nutting squad” around Louth, Monaghan and Armagh. Kevin Fulton, whose real name is Peter Keeley, a central witness at the Tribunal, also described himself as a driver for the unit, including Magee and Scappaticci in Dundalk and Newry. Scappaticci’s interrogations were sometimes carried out in the Republic of Ireland; his victims’ battered bodies were left North of the border.
Freedom of Information Request
An FOI request submitted to the Department of Justice in Dublin sheds light on Scappaticci’s covert relationship with the Smithwick Tribunal, whose lawyers vehemently denied when asked, that he ever gave “evidence”.
Scappaticci had been outed as the alleged Agent Stakeknife or Steaknife at the time of the Stevens Inquiry in 2003. The outing is credited to a former Sergeant Ian Hurst of the British Army Intelligence Corps FRU (The Force Research Unit ). Its also credited to his sometime associate Peter Keeley aka Kevin Fulton, a former FRU agent recruited to penetrate the IRA in Newry and Dundalk. Both were to feature in the Tribunal and their ‘evidence’ and assertions ultimately led to Scappaticci getting legal representation. Hurst had earlier alleged in his co-authored book ‘Stakeknife’ (2003) that Scappaticci had been involved in the interrogation and murder of the Tom Oliver, a Cooley, Co Louth farmer in 2003.
Scappaticci always denied these allegations. He had challenged the British Government and in particular a Minister in the NIO to deny he was the agent in the High Court in Belfast in 2003. The Minister Jane Kennedy, refused to deviate from the ‘Neither Confirm Nor Deny’ formula used in cases involving intelligence matters. The solicitor acting for Scappaticci at his first press conference, a judicial review application and later at Smithwick was Falls Road based Michael Flanagan. In 2006 Scappaticci also successfully sought an injunction against Independent Newspapers in Belfast to prevent them from naming him as Stakeknife. There is no reason to think Scappaticci has deviated from his position of denial.
FOI documents released by the Dept of Justice show that in 2007 the Smithwick Tribunal lawyers were already having meetings with Scappaticci and his solicitor.
In May 2011 at a first public hearing of the Tribunal after years of an ‘investigatory phase’, he had gained legal representation..
A reply to an FOI request was given on the 28th June 2019.
See below are the questions asked and the responses from the Dept –
-What legal fees were paid to Mr Scappaticci in relation to his engagement with the (Smithwick) Tribunal at any time?
– What expenses were paid to Mr Scappaticci in relation to.. the Tribunal at any time?
– What meetings were held with Mr Scappaticci in this country or another, or his representatives, by any members of the Department of Justice and Equality, or law agents or officials, acting on behalf of the Irish State, the Department or the Government?
FOI Response
The Department ruled that the questions relating to meetings held with Mr Scappaticci by any Government officials or representatives (Q3) were outside the scope of the Freedom of Information Act.
[The Act does not apply to records relating to Tribunals …other then a record relating to the expenses or other matters concerning the general administration of the Tribunal or Commission].
Within these parameters the records of the Department were searched and 7 records were located. The decision was to release 1 in total and part-release and thereby redact material in 6 records. The decision-maker in the case concluded that record 3 and 5 – “concerned matters relating to law enforcement and public safety, and security, defence and international relations” and redacted parts of these two records under sections 32(a)(i), 32(a)(iii), 32(a)(iv) 32(a)(b) and 33(1)(c) some of which deal with protection of the State.
Legal Costs
The documents reveal that in 2007 Scappaticci’s solicitor first submitted legal fees of £6,268.67 on the 30 November 2007 relating to meetings with Tribunal lawyers.
The bill when broken down shows that the payment sought was for consultations and telephone calls with client (Scappaticci) in relation to the work of the Tribunal…
The Tribunal administrator passed the invoice onto the Department for payment in November 2007. A Department official however reminded Judge Smithwick of the normal procedures for dealing with costs in Tribunals in a letter on the 14th of December 2007 and pointed out that from the information available to the Department it seemed that the invoice may constitute “third-party” legal costs which were normally paid after a Tribunal and only after a rigorous process of consultation by Legal and Financial officers in particular the Taxing Master.
“If this is the case, Judge Smithwick..may wish to be aware that, in view of the potentially significant nature of such third-party legal costs to the State, Tribunals of Inquiry adopt a specific procedure for dealing with these matters. This procedure involved settling all third party costs after the Tribunal has reported”.
Mr Justice Smithwick replied that he agreed with the view of the official in relation to people who had legal representation at the Tribunal with exceptions.
“There are however other costs which are incurred. Potential witnesses have to be sought out by the Tribunal and encouraged to make statement. Some of them have concerns about doing so lest they breach the Official Secrets Act in their jurisdiction or expose themselves to conviction for criminal offences there. I have several cases of this kind and Mr Flanagan’s client is one. It is a matter of very great delicacy and in order to persuade his client to help us his client needs to have Mr Flanagan’s assurance that it will be safe for him to do so”..
The bill was paid.
Representation Granted
So by May 2011 Scappaticci had been granted representation. As his solicitor said in his application to Judge Smithwick two former members of the British Army Intelligence Corp, agent Peter Keeley who was called by his pseudonym ‘Kevin Fulton’ and former British Army Intelligence / FRU Sergeant Ian Hurst made statements and were to give evidence that made Scappaticci relevant to the Tribunal and give him an entitlement to full legal representation.
Judge Peter Cory calls for a public inquiry in Garda collusion in 2003
As part of the Weston Park Agreement of 2001, between the British and Irish Governments a number of ‘legacy cases’ were to be re-examined. Peter Cory, a retired Judge of the Supreme Court of Canada, reinvestigated a number of cases.
In 2003 he called for a public inquiry into alleged collusion in the murders of Pat Finucane, Billy Wright and Chief Superintendent Harry Breen and Superintendent Bob Buchanan who were both shot dead by the IRA in March 1989.
In 2005 Dáil Éireann, on the recommendation of the Minister for Justice, set up the Smithwick Inquiry which was chaired by Judge Peter Smithwick. It was to inquire into allegations of Garda collusion in the murders of Breen and Buchanan. It sat in Dublin – holding public hearings between 2011 and 2013.
Peter Keeley/Kevin Fulton
Peter Keeley aka Kevin Fulton was a pivotal witness for both Cory and Smithwick on foot of an entirely false verbal statement that had originally been made to Cory in 2003 when he and Willie Frazer met Cory in Dublin’s Merrion Hotel. According to Frazer he was the only other person in the meeting and said Keeley most certainly did not give Cory a written statement though a document entitled ‘The Fulton Statement’ appeared in Cory’s final report. Keeley verbally implicated retired Dundalk Special Branch Sergeant, Owen Corrigan in the murder of Chief Superintendent Harry Breen and Superintendent Bob Buchanan in March 1989 by alleging he gave information to the IRA.
The exact initial ‘Fulton’ allegation according to Frazer was the false statement that Corrigan walked out of Dundalk Garda station and said to an IRA man and Keeley/Fulton, allegedly sitting in a nearby car, ‘they are here’ meaning Breen and Buchanan. Cory made it clear that Keeley was the 11th hour witness that persuaded him to recommend a public inquiry.
The allegation changed completely by the time Keeley gave evidence at Smithwick in late 2011 but because no one except Frazer knew exactly what Keeley’s original allegation to Cory was he got away with it. There was a problem with the original allegation It was clear from British Army logs submitted to the Tribunal that the operation to ambush Breen and Buchanan had started much earlier than Corrigan’s alleged collusion. This was clear by the time Smithwick Tribunal went into public hearings (2011) so Keeley/Fulton had to rework his allegation. His new statement was circulated in November 2011.
Willie Frazer described how the ‘script’ for Keeley was dictated by RUC men who were out to get Corrigan for their own reasons. Former Special Branch Garda say they were receiving calls from former RUC officers alerting them to the fact they were ‘going for’ Corrigan.
As far as Frazer was concerned his only motivation was to kick start an inquiry into the murders of the most Senior RUC man killed in the troubles Chief Superintendent Harry Breen and Superintendent Bob Buchanan. He believed the British Army had questions to answer. This was a view Smithwick didn’t share as was obvious during Frazer’s three fraught meetings with the Judge on the Edenappa Road in South Armagh.
What Frazer hadn’t reckoned on was that the Inquiry would be held in the South and therefore be hobbled from the start, by having no authority or jurisdiction over the RUC or British army and just ‘grace and favour’ access to their intelligence files. As Frazer told Smithwick after he managed to get before the Tribunal in Dublin late in the day “The British Government haven’t put the facts before you”.
The so called ‘Fulton statement’ as published by Judge Cory who carried out the initial 2003 inquiry into the Breen and Buchanan murders, was surprisingly vague in its allegations. Cory had withheld the defamatory allegations made by Keeley. So it was at the Public Inquiry called for by Cory – the Smithwick Tribunal – that Keeley unveiled his Smithwick allegation. By now it had completely changed to centre around an alleged conversation in a car between IRA man Patrick Blair and Sgt Corrigan in the car park of Fintan Callan’s Road House, a meeting allegedly in a large open car-park sandwiched between two roads, one to Castleblaney the other to Hackballscross. Now Keeley accused Corrigan of passing information about Cooley farmer Tom Oliver to Patrick Blair. Corrigan was falsely accused of telling Blair that Oliver had passed information to Dundalk gardai about the local IRA unit. This resulted in an alleged verbal threat by Blair to kill Oliver. Absurdly Keeley had managed to convince both Cory and Smithwick that Corrigan was a colluder with two entirely different allegations.
Patrick “Mooch” Blair adamantly denied in a statement and in evidence in November 2012, that he ever had such a meeting and said his life would have been in danger if a meeting had taken place in one of the most public spots on a main road. Corrigan vehemently denied all Keeley/Fulton’s allegations. Willie Frazer in a number of conversation with me denied that such a meeting between Corrigan and Blair had taken place and was stunned by Keeley’s new allegation which completely deflected from the murders of Breen and Buchanan. As he had been Keeley’s original ‘sponsor’ Keeley’s allegations made it seem as if he had been party to the Oliver allegations – a murder he said he knew nothing about.
But the changed story and statement had a major relevance for Scappaticci. He was now brought into the frame when Keeley’s new accusations described how he had driven the van that delivered Tom Oliver to the interrogation unit led by Scappaticci and John Joe Magee. The interrogation and murder of Tom Oliver in July 1991 was now featuring in Keeley’s written statement and verbal evidence.
In his evidence (above) Keeley described how he had hired a van in Hilltown Newry to be used in the abduction of Oliver who was then handed over to Scappaticci and John Joe Magee.
Ian Hurst had already accused Scappaticci of involvement in the murder of Oliver in his book ‘Stakeknife’ published in 2003. The stage was set for an appearance by Scappaticci but he never appeared in public. Despite his full legal representation his relationship with Smithwick remained secret.
Agent Keeley
In 2006 Keeley began to engage with the Tribunal at meetings in the UK facilitated by the PSNI. Originally recruited from the Royal Irish Rangers in Berlin by Army Intelligence he joined FRU in 1981 tasked with penetrating the IRA in South Down.
But by 2006 was now one of a number of discarded agents who operated in Northern Ireland. He had a major grievance that he had not been resettled or received an army pension. Senior security sources say the RUC Special Branch and M15 spent years desperately trying to put the “Fulton” genie back in the bottle. That only succeeded after he was offered an apartment and living expenses around 2006. He now works as a photographer in London. A recent assignment has been working with the far right activist Tommy Robinson.
At Smithwick, Fulton was challenged by Jim O’Callaghan S. C. about his evidence in relation to the Tom Oliver murder.
Q – I want to state to you and ask for your comment upon it Mr Keeley, that you were part of the team of thugs that murdered Tom Oliver?
A – No Sir I was not part of the team of thugs that murdered Tom Oliver, I was not present.
The Oliver murder is only one of the many assaults, kidnappings and murders Keeley has ‘knowledge’ of. He has had to pay compensation to the mother of Eoin Morley who was shot dead by the IRA in Newry in 1990. He was involved in the ‘human bomb’ episode that resulted in the death of a young solder at a checkpoint in Cloghogue, Newry in 1990. He is also heavily implicated in the construction and possible triggering of the ‘flash unit’ that detonated the mortar which killed RUC woman Colleen McMurray in 1992 while working as agent for the M15 and Special Branch. Over thirty civil cases have been taken against Keeley and the PSNI. They are being settled quietly. How long he or his handlers can escape the criminal law remains to be seen.
Keeley alleged that he himself was set up to be murdered by Scappaticci by RUC Special Branch –
“ … Special Branch and myself had a bad run-in with M15; you know the whole relationship went very sour because I believe they set me up to be murdered, and again, set me up a few times very recklessly that would cost me my life”.
Keeley alleged that he was interrogated by Scappaticci in 1994 after an attempt on the life of a senior RUC Officer Derek Martindale failed resulting in the arrest of an IRA ASU. He had supplied a mobile phone and a car to the IRA team. The phone was in his wife’s name and she alleged that she too was questioned allegedly by Scappaticci in a flat in the New Lodge area of Belfast. Kenova has found no evidence that Scappaticci was involved in such an interrogation.
Keeley had an ongoing relationship with MI5 which began in 1991 was to continue in one form or another until the end of his career in 2000/2001. In 1996 he went to work for HM Customs and the RUC Drug squad. Subsequently he transferred to C (1) 6, the RUC Financial Crimes unit, where he was cleared to work as an informant by the former ACC Ray White. In 1999 in a joint op between CID and HM Customs Keeley was given participating status by HMC for an operation involving a drug warehouse in Belgium. Interestingly in 1999 Andrew Parker who was later to become Head of MI5 transferred to HMC as Head of Intelligence. Keeley worked with two of the future heads of MI5. There are a number of civil actions in train alleging entrapment by Keeley in a series of alleged VAT scams and frauds.
Ian Hurst aka Martin Ingram
The other trigger for Scappaticci’s legal representation at the Smithwick Tribunal was the statement dated June 2011, made by a former Sergeant in FRU Ian Hurst aka Martin Ingram which he put on the internet. Hurst had served as a collator at the rank of Corporal in FRU in Derry from 1981-’84. He was later promoted to Sergeant and became a handler in FRU in Fermanagh between 1987 and ‘90. Hurst made a series of bizarre allegations in his 2011 statement which was “addressed” to Judge Smithwick. He alleged that Scappaticci was the handler of Owen Corrigan while he was a Special Branch sergeant in Dundalk. His source for that and other allegations of Garda collusion was, he claimed, Scappaticci’s Army Intelligence handler witness 82 believed to be Major David Moyles. Unfortunately for Hurst’s credibility Major Moyles agreed to give evidence immediately after Hurst denying that agent Steaknife (he was obviously referencing Scappaticci) had ever given him intelligence about Corrigan or any other rogue guards in Dundalk and that he was certainly not Corrigan’s handler. Hurst also seemed to be under the mistaken impression that his regular associate Keeley would back up this allegation, which he didn’t. Hurst wilted under cross examination at the Tribunal and was ultimately dismissed by Smithwick. His statement had served its purpose – his wild allegations had, along with Keeley’s levered Scappaticci into the Tribunal through legal representation if not, as in Scappaticci’s case, in person.
Scappaticci’s applications
These are the steps that led to Scappaticci’s full legal representation at Smithwick:
On the 17th of May 2011 Scappaticci’s solicitor Michael Flanagan applied in writing for legal representation after being informed by the Judge that his client “appeared to be a person whose reputation was at risk i.e. a person against whom allegations might be made” At that point he was given limited access to information when it was deemed relevant. On Day 20, the 19th July 2011 Flanagan made a further application complaining about the limited information he received and said that while some witnesses might not have questions for Scappaticci he might have questions for them.
Mary Laverty S.C. for the Tribunal gave a run down on the background to Scappaticci’s legal representation up to that point. She made it clear that after specific allegations emerged:
“Mr Flanagan was immediately put on notice that certain witnesses were going to make certain statements that referred to him (Scappaticci)…somewhat fleeting. So he applied..and was given limited representation, and so far any potential witness who is going to refer to Mr Scappaticci…that we have in our possession, those statements have been given to Mr Flanagan”. Mrs Laverty also invited Mr Scappaticci to make a statement if he had information concerning the terms of reference of the Tribunal. This may seem ironic considering that by now the Tribunal team had extensive consultations with Scappaticci. Judge Smithwick decided to take a few days to deliberate on the application.
On day 24, of public hearings, the 26th of July 2011 Judge Smithwick made a ruling on the application.
Dealing with Mr Flanagan’s earlier 28th June application which was moved on 19th of July, he detailed the three allegations that were being made against Scappaticci:
- “That Mr Scappaticci was the agent ‘Steaknife’ — also spelt ‘Stakeknife’ working with the IRA on behalf of British Security services.
- That Mr Scappaticci as a member of the IRA was the handler of Garda Sergeant Owen Corrigan and
- That Mr Scappaticci was involved in the abduction and interrogation of Mr Tom Oliver, a man murdered by the IRA. ‘’
The Judge continued:
“He has consistently denied these allegations and maintains that denial. Nevertheless the public may identify him with “Stakeknife”. Mr Flanagan argues cogently that he should be represented and 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.
The Tribunal accordingly extends the right of Mr Scappaticci to limited representation on those occasions when either Mr Scappaticci or “Stakeknife” is mentioned”.
By November 2012 Scappaticci had a full legal team at the Tribunal at each sitting, as the murder of Tom Oliver came in and out of evidence. The case appeared to be the particular focus of Scappaticci’s legal team not surprisingly, as it would appear that after 1990 and events surrounding the interrogation of another informer Alexander Lynch in Belfast, Scappaticci had come South to lay low in Dundalk and may not have been part of the interrogation team at the date of Oliver’s murder. Also by 1990 FRU was wrapping up and Operation Stakeknife was drawing to a close.
In his final legal submission (above) Scappaticci made it clear that he received legal representation primarily to claim he was not Agent Steaknife.
Reliable sources maintain that Scappaticci also had extensive consultations with the Tribunal team during a 3 day visit to Dublin. This is believed to have caused consternation among senior legal officials contemplating the implications of Smithwick’s actions. The heavily redacted paragraphs about Scappaticci’s dealings with the Tribunal in the FOI material contains sensitive information which will not be revealed on Security grounds.
On 11 July 2012 the Tribunal S.C Justin Dillon informed lawyers that Scappaticci ‘may wish’ to put some questions to Owen Corrigan dealing with the various allegations (which he denied). Obviously the Tribunal still hoped that Scappaticci would appear as a witness. The fact that the Tribunal withheld all the information of their dealings with Scappaticci was a grave omission and may have heavily disadvantaged Corrigan.
Ian Hurst Gives Evidence April 2012
Hurst had first contacted the Tribunal in 2OO6, claiming he had relevant information which he was prevented from revealing by gagging orders enforced by the Ministry of Defence, UK. Hurst had been regarded as a reliable source by journalists over the years but Smithwick did not regard him as a credible witness. In his final report he said – “ I attach no weight to the evidence given by Ian Hurst to this Tribunal. I should add however, that nothing in Mr Hurst’s evidence altered in any way my view of the evidence provided to the Tribunal by Kevin Fulton”.
In his evidence Hurst claimed that during his work as a Collator in the early ’80s, he had seen intelligence documents and been told of the relationship between Scappaticci and Corrigan by Scappaticci’s handler, a British Army Major given a cipher of witness 83 Major David Moyles . However Hurst’s sensational allegations effectively collapsed when he was told his alleged source, Scappaticci’s long-time handler, would contradict his evidence.
The other leg of his allegations contained in the book Hurst co-authored, “Stakeknife” published in 2004, was that Scappaticci as Agent ‘Stakeknife’ , had been responsible for bugging a telephone that revealed Tom Oliver as a Garda informant. He quickly resiled from that under cross examination, claiming that it was his co-author Greg Harkin and his Garda sources who were the source of information for that chapter. Hurst also maintained that he first realised that Scappaticci was Stakenife in 1981, a fact which for some reason he decided to keep to himself for over a decade.
Peter Keeley pointed out that unlike him, Ian Hurst left the British Army army on full pension and in good standing. Hurst had submitted his books to the UK D notice committee and made it clear before he began oral evidence that he had spoken to a Government solicitor to clear use of certain documents. His evidence was overseen by Lieutenant Colonel Hockley (British Army) at the Tribunal.
One way or another the revelation of Scappaticci as the alleged army agent, the “Golden Egg” as described by the former British GOC John Wilsey led to Scappaticci’s various court cases and his involvement in the Smithwick Tribunal.
Witness 82 Steaknife’s Handler
Witness 82, the now retired British Army major David Moyles, was an unexpected and important witness at the Tribunal. According to a report in the Belfast Telegraph the Tribunal had privately interviewed him in the UK in June 2011. He gave public evidence in Dublin on 20th April 2012, almost immediately after Ian Hurst.
Witness 82 had earlier submitted an undated (and unsigned) statement to the Tribunal in which he outlined his 29 year career in the British Army. He served in the Intelligence Corps during 5 tours of duty in N.I – 4 of them in various agent handling roles. Between 1982 and 1990 with one break he had been Stakeknife’s handler in the Force Research Unit. He made it clear he was precluded by law from disclosing the identity of the agent but answered the questions relating to Scappaticci as if he was the agent.
Witness 82 said he did not recognise some of Hurst’s descriptions of intelligence gathering as it related to agents; pointed out that Hurst served in FRU exclusively in the West of the province under 8 Brigade not 3 Brigade serving in Armagh, and had no direct knowledge of the area. He completely contradicted Hurst’s assertions about Scappaticci’s knowledge of Garda collusion.
He also gave a detailed description of how FRU disseminated intelligence from agents like Scappaticci directly to RUC Special Branch Headquarters.
FRU was directly responsible to the GOC NI, he said, but all agents’ activities and identities were declared in “true identity” to the Head of RUC Special Branch through the RUC Special Branch source unit. MI5 who had day to day oversight of FRU activities also knew the identity of all agents.
Intelligence given by Scappaticci he said, was distributed after each debriefing in written form exclusively for the Head of Special Branch at HQ RUC Knock in Belfast. The Major said he or a member of his team personally delivered briefing material to the RUC’s E9 Department to a particular Chief Inspector. Relevant material was also delivered to the Regional Heads of the Special Branch often by hand. The Majors insistence that Army Intelligence immediately handed on all vital intelligence to the RUC Special Branch echoes documents in De Silva in which the GOC criticises RUC Special Branch for its use of FRU material.
Crucially 82, was emphatic that Steaknife was not connected to, knew of or was responsible for obtaining information from Garda Corrigan or any other member of An Garda Siochana and that he had not seen any intelligence generated by Scappaticci to that effect.
During the course of his oral evidence to the Tribunal Witness 82 was cross-examined by Corrigan’s S.C –
Q Did you have any conversations with Mr Hurst about Mr Corrigan?
A- Well I have no information about Mr Corrigan, so to the best of my knowledge I don’t see how I could have had that conversation.
Q- The thrust of Mr Hurst’s evidence..was that there are documents that exist linking my client to the murders of the unfortunate RUC officers and linking my client to other acts of collusion with the IRA but which have not been produced to this Tribunal. Are you aware of such documents?
A- I am aware of no such documents…well if they had come from the agent I am responsible for running I would certainly have remembered them….
Q- Do you have any reason why the British Army, the Ministry for Defence, would want to hold back such information ?
A- ..a subject of this nature while extremely sensitive, could simply not be pushed under the carpet. It is something that would have have had to be addressed in some way, even if there had been discussions at the highest level. I just find it incredible that such information of such magnitude and sensitivity could have been simply disregarded or buried”.
He also said that Steaknife had no advance knowledge of the PIRA operation resulting in the ambush of Chief Superintendent Breen and Superintendent Buchanan, nor did he ever indicate that it was based on information provided by a member of An Garda Siochana.
He went on to comment that “Suggestions that South Armagh PIRA was heavily penetrated or riddled with informants are ..preposterous” and that the IRA were best placed to describe what happened on the 20th March,1989.
Witness 82 was asked about the allegations made by Hurst and Harkin in their book “Stakeknife” in relation to the Tom Oliver murder –
Q – ….Mr Hurst has said in his book, that a tape-recording was placed in a phone booth in the Republic by a FRU agent, whom he named as Mr Scappaticci. Did you ever see any contact form or any intelligence report at any time which suggested that?
A – No.
Despite witness 82, Moyle’s emphatic evidence that he had seen no secret store of Army intelligence about Garda collusion, Smithwick chose to believe Keeley because without him there was no evidence of collusion, even if it had no bearing on the case under investigation. Keeley’s changing stories of Garda collusion now focused on the alleged betrayal of Tom Oliver – there being no direct evidence left in the Breen and Buchanan killings.
Enter Harris
Drew Harris, now Garda Commissioner was to compound Smithwick’s problems when he arrived to pull the rug under the Tribunal with his evidence of a new Garda – a 4th man – not identified to the Tribunal who according to ungraded intelligence had been the ‘real’ colluder in the murders of Breen and Buchanan and Oliver in October 2012. This man has not yet been identified and while the Garda Commissioner stands by his evidence he has not elaborated further.
A number of very credible witnesses describe the Tribunal lawyers’ distress at this eleventh hour revelations by Harris.
Information Withheld
None of the other lawyers at the Tribunal were informed of the extensive consultations the Tribunal lawyers had with Scappaticci as they relied on a heavily legalistic view of “evidence” and when asked if Scappaticci had given evidence the Tribunal Solicitor emphatically denied it on the record.
The Smithwick report was published on the 3rd of December 2013. The Tribunal however only concluded it’s work in April 2014 when Smithwick made orders for the legal costs of third parties at the Tribunal who had been granted representation. The costs were paid in 2015.
Award of Costs
An order of costs was made in favour of Scappaticci on the 7th April 2014 and released under FOI. Smithwick’s relationship with Scappaticci was conducted entirely in secret.
After the awarding of costs Scappaticci’s solicitor Michael Flanagan submitted his bill to the State Claims Agency.
A letter released under FOI (marked 3 by Dept), from the States Claims Agency describes how it dealt the Scappaticci’s files on the 24th December 2014. The letter confirmed settlement of costs in the total amount of 382,270 euros (down 685,986).
In January 2015 Cyril O’Neill Scappaticci’s Costs Accountant confirmed his bank details (below):
On the 28th January 2015 the National Treasury Management Agency States Claims Agency replied:
In a memo of the 6 February 2015 addressed to the top civil servants in the Department of Justice an official briefing note read as follows –
On the 11 February 2015 the Secretary General of the Department Noel Waters, signed off on the payment authorisation form to allow the payments costs of 382,270 euro to be made in favour of Michael Flanagan in Belfast.
Owen Corrigan
After the publication of the Smithwick report in 2014, Owen Corrigan’s lawyers were granted a Judicial Review by the High Court, in relation to a chapter dealing with Fulton/ Keeley’s evidence and in particular the allegations attempting to implicate Corrigan in Tom Oliver’s kidnapping.
On the 13th February 2015 Terry Walsh from the Department of Public Expenditure and Reform left without much choice signed off on Scappaticci’s third party costs on the “strict understanding that sufficient funds are available in the relevant subhead of your ( Dept of Justice) Department’s vote without leading to any overrun.
Scappaticci’s final Legal submission
Scappaticci’s lawyers made a detailed submission to Smithwick on his behalf which was published in 2013 as Part 2 of the Smithwick report (only available on CD). He asked that Judge Smithwick make no finding in relation to him.
He again rejected all the evidence put forward by Hurst and Keeley including any involvement in the Tom Oliver murder and denied that he was the handler of a Garda. He again denied that he was agent Steaknife or Stakeknife.
It seems extraordinary if by 2013 Smithwick was not aware that a prosecution against Scappaticci had been considered for perjury. He also ignored Witness 82 Scappaticci’s long-time handler’s evidence denying Garda collusion. He arrived at a vague conclusion of collusion by Garda but couldn’t identify a colluder. He granted legal representation to Scappaticci to deny he was Agent Stakeknife or Steaknife, when the witness Moyles his handler answered questions in relation to agent ‘Steaknife’ (Moyles’ own spelling of the name) who was clearly Scappaticci.
The extraordinary outcome of the Smithwick Tribunal was that by awarding Freddie Scappaticci legal representation to defend his reputation and prove “once and for all” that he wasn’t Agent ‘Stakeknife’ or ‘Steaknife’, the Irish State was forced to hand over hundreds of thousands of pounds for a man believed to be a notorious British Army Agent responsible for dozens of murders, brutal assaults and torture.
The Irish State has itself shown a marked reluctance to investigate the numerous interrogations, kidnappings and murders carried out by the IRA’s so-called ‘ Internal Security’ unit. The Republic guards its Secret State.