The exemption is subject to a public interest test.
Clearly I had raised a public interest factor as part of my appeal notice and would argue that any national security issues raised by the police did not pose a real threat to national security.
Another part of the legislation they were seeking to rely on was Section 30 (2), which creates an exemption for information:
Which is, or has been held for the purposes of a criminal investigation.
Which is, or has been held for criminal proceedings conducted by a public authority; or,
Which was, obtained or recorded for various investigative functions and relates to the obtaining of information from confidential sources.
Section 30 provides a class based exemption. This means it is not necessary to identify some prejudice that may arise as a result of disclosure in order to engage the exemption.
As the exemption is subject to the public interest test, a public authority must consider whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information. Although you do not have to identify some prejudice in order to engage the exemption, it will be an important factor when applying the public interest test.
My main argument in relation to this part of the legislation was that the register in particular was nothing more than an index, which related to original documents, which would have come under the above definitions.
There were a number of concerns I had with the police evidence leading up to the case. The judge in his earlier direction had directed that all documentary evidence should be served by March 11th 2011. After all of these exchanges the police still produced documents outside of the specified dates.
One such document I believed would be invaluable to my appeal and when I received it I couldn’t believe my luck. The document in question was classed as confidential and related to the recruitment of modern-day informants. It set out a number of conditions the police would accede to as well as setting out what was expected of an informant, (Picture 17).
One particular paragraph, which was interesting and most helpful was the paragraph directed at the informant, it simply read, “We will protect your identity”. There is no mention in that document about protecting the identity above and beyond their lifetime. Nor is there any mention of doing the same in relation to relatives or descendants in the present or the future. I saw this document as the new changed policy on informants, which I believe had been introduced following discussions referred to in the internal police memos of 2003 previously discussed, where there was talk of changing the policy which was in existence at that time.
My own personal view of all of the evidence I had amassed and submitted was that it took the police by surprise. I firmly believe that they were of the opinion that they simply had to turn up in force at the hearing to be able to secure a victory. This was the reason I believe that they were forced to try to introduce documents outside of the original directions in an effort to prop up their case. My beliefs were confirmed by events that took place both on the day before the hearing commenced and events of the morning of the hearing.
Right from the outset I had concerns about the evidence the police were going to give in closed session and voiced my concerns to them and the commissioners as well as the tribunal judge. My concerns must have had an impact on the police because the day before the hearing they served on me a statement from the police officer who was going to remain anonymous and was to be referred to as DI D, the police had previously indicated that he would be giving all of his evidence in closed session.
On reading his statement I could clearly see that none of it met the criteria for being heard in closed session in any event. It was clear their plan was for him to give all of his evidence in closed session thereby depriving me of the opportunity of being able to cross-examine him.
The day before the police gave notice that they were intending to introduce a second additional statement from one of the witnesses Supt. Julian McKinney who was head of Covert Intelligence, the department within the police, which deals specifically with informants. The police indicated it was to be given in closed session. I gave notice to the judge in advance that I would be objecting to the late submission of the statement.
May 10th 2011 saw the opening of the hearing proper. However, 30 minutes before the hearing commenced the barrister representing the police served on me a number of stated cases, which he was intending to seek to rely on with a view to allow the submission of the second and late statement of Supt. McKinney.
Having not had any time to peruse these or to study them in any detail with a view to adding to my basic representations I had to rely on the judge to interpret them in a way he believed was right and proper given the legislation the police were seeking to rely on.
The outcome was that the judge stated he was legally bound to allow this statement to be tendered as evidence. However, he realised my concerns over the closed session evidence and ruled that with one exception this statement could be given in open session and I was given a copy.
This statement confirmed what I thought, that the police at this late stage were still looking to prop up a case they thought they now might lose. The statement in question was all hearsay and related to an unnamed officer from one of the other unnamed security agencies confirming their policy on the non-disclosing of the identities of informants. I would seek to use this to my advantage at a later stage during cross-examination of the officer and would ask why there was no specific statement from that officer himself or why was he not produced as a witness to give his evidence first-hand?
Prior to the commencement of the hearing I made an application to the judge that all police witnesses should remain outside the hearing prior to them giving evidence. This is not normal practice for these types of hearing however, under the circumstances I felt it right to make the request having regard for the fact that some of my questions would be directed at all of the witnesses individually and felt that if they knew what questions were coming and how other witnesses had answered it might prejudice my case. Despite objections from the two barristers representing the police and the information commissioners the judge allowed my request.
Eventually the hearing got under way. The first witness called by the police was Yvette Arnold. She was in charge of the maintenance, management and retention of Special Branch files and more up to date files of SO 15, which is the new name for Special Branch (Counter terrorism). She had also been called as a witness in the previous Butterworth hearing.
Her main testimony related to the internal Special Branch memos going back to 2003 which I have previously referred to and other correspondence attached to those memos. These showed she had been involved in the proposed change of the police policy regarding not retaining the identities of informants forever.
In evidence she stated that she was not aware of the existence of the register and the ledgers until 2003 when Clutterbuck drew her attention to them. She stated that to that very day she did not know where they had come from. She firmly stated that in any event Clutterbuck would not have had any permission to access these records or to publish anything from within them without special permission.
Furthermore, she stated that following her being made aware of the existence of these records she did not have any conversation with Clutterbuck or any further conversation with any other Special Branch personnel with regards to their contents or the content of Clutterbuck’s thesis.
She stated that she knew of the existence of the policy relating to the non-disclosure of the identities of informants, but reiterated that although there were discussions regarding the change to that policy as far as she was concerned that policy was never changed and still remains the same today.
She agreed that the ledgers and register were offered to The National Archives in 2004, and stated that they were examined by their client manager from The National Archives with a view for possible future preservation of them. At this point she
went to great lengths to suggest that had The National Archives agreed to take these documents they would have been redacted prior to them being released to them for public viewing. I personally have not seen any documentation confirming that either from the police or from The National Archives.
It became apparent that Ms. Arnold in my opinion was less than economical with the truth. This was borne out by further questions I put to her during further cross-examination of her in relation to the privileged access facility referred to by her in some of the correspondence. She stated that this privileged access facility was withdrawn in 2005. Clearly that is not the case as Butterworth in 2008 was offered this facility but declined to sign the undertaking.
In another document which Ms. Arnold was responsible for writing there is mention of a parliamentary question being lodged in parliament relating to the Phoenix Park murders of 1883, the then Home Secretary in 2003 forwarded this question to Special Branch for them to answer. In the aforementioned document although not specifically detailing the question it was obvious that the question related to informants used in connection with that investigation.
When questioned initially about this parliamentary question Ms. Arnold stated that the question related to what was the oldest file Special Branch still held. Clearly again that was not correct because as previously stated the question is specifically related to the Phoenix Park murders.
The next witness was Detective Superintendent Julian McKinney from a SO 15 (Counter terrorism command of the Metropolitan Police). Superintendent McKinney is head of covert functions of that department, which involves the recruitment of and the management and retention of modern-day informants known as covert human intelligence sources.
Supt. McKinney I felt was without a doubt the driving force behind the police case to withhold the ledgers and register. In his evidence he stated he had seen the register and the ledgers and accepted that the ledgers only made occasional references to payments to informants. He stated he was unable to confirm the accuracy of the entries or their connection to any living relatives. He accepted that it may not be possible to track down any living relatives of informants by using public records, but went to great lengths to suggest they could still be identified with local or family knowledge.
Supt. McKinney in his cross-examination by me stuck rigidly to his principles throughout, and never missed an opportunity to put to the tribunal his fears and concerns regarding the release of the contents of the register and the ledgers. He had also given the same evidence in the Butterworth tribunal hearing in exactly the same fashion.
But of course was that evidence he gave sufficient to prove that all the police concerns and objections were fully justified? He mentioned that there was in existence a policy of non-disclosure of the identities of informants, which extended to above and beyond their lifetime. He also stated that extended to families and descendants. He was however not able to provide any documentary evidence to show the existence of such a policy either past or present. He also said that from his time in the police since 1985 he is not aware of any policy change and knew nothing about the proposed policy changes proposed by Clutterbuck in 2003.
I then asked him to look at the police document, which is in current use in relation to modern-day informants (Picture 17). In principal he accepted that it was an informant policy document, and also accepted that it mentioned nothing about protecting an informant’s identity above and beyond their lifetime, nor did it mention anything about families or descendants.
As I have already mentioned it is an important document. It clearly casts a doubt about some of the informant issues the police were seeking to rely on. Superintendent McKinney would not be drawn by the suggestion I put to him regarding this new document, that the forever policy which was in existence in 2003 was in fact changed following the suggestion by Clutterbuck and the endorsements and agreement by both Commanders Pearce and Black and this new document is testament to that.
In my cross-examination I went to great lengths to expand on the late additional statement he had provided in relation to his conversations with an “unnamed” person or persons from an “unnamed” other security agency. Superintendent McKinney could give no plausible explanation as to why no formal written statement had been taken from anybody from that agency nor could he give any plausible explanation as to why any person from that agency had not been called to give direct evidence before the tribunal. He agreed that that would have strengthened the police case even more.
In the latter part of my cross-examination of him, I put to him the Royal Irish Constabulary Informants register, and The Named and Paid informants file. He could give no details of his informant recruitment or management programme being affected by the release of these important documents into the public domain. Furthermore, he could give no details from the current Royal Ulster Constabulary now known as The Police Service for Northern Ireland or The Garda Siochana to suggest that the release of the documents had in any way affected their current informants programme.
In continuing with this line of questioning Supt. McKinney could not give any details of any harm befalling any relatives or descendants of any late Victorian police informants by any modern-day Irish terrorist group or groups. Nor could he give any details of the fact that any of these modern-day groups were actively seeking out relatives or descendants from that time period.
As to the suggestion that Clutterbuck had acted without authority the Supt. stated that he could find no written records to suggest he was given permission. He however accepts that both internal and criminal prosecutions could have been taken against Clutterbuck, but offered no explanation as to why that never happened.
The next police witness was Roger Pearce who was a retired Metropolitan Police Commander. He retired in 2003 when head of Special Branch and Director of Intelligence. Mr. Pearce had also previously given evidence in the Butterworth tribunal hearing. Most of Mr. Pearce’s evidence was in line with the previous witness in enforcing the police concerns over the release of the register and ledgers.
In part of his evidence in chief he stated that despite being involved in correspondence in 2003 regarding the ledgers and register he had never ever seen them. A statement I found strange to say the least.
When questioned about his involvement in the memos Mr. Pearce was now suggesting that there was a clear case of misinterpretation regarding the memos he actually signed. He was now stating that he had not signed them agreeing for the “Forever Policy” to be changed, he was simply signing them with a view to the possibility of exploring the issue of change. Without a doubt Mr. Pearce was in my opinion desperately trying to dig himself out of a big hole.
Prior to the final witness giving evidence the police indicated they wanted the witness to remain anonymous and to be allowed to give his evidence behind a screen. He was to be known as DI D. Now as to him remaining anonymous it was somewhat farcical as Mr. Blay the solicitor who had been acting for the police throughout this appeal had already given me his full name in a list of witnesses in an earlier email. As previously stated it was the intentions of the police to have the officer give all of his evidence in closed session but decided better of it at the very last moment.
The officer was a detective inspector who in his statement stated that during his service since joining in 1990 he had worked in various specialised police departments. He now worked in the department overseen by Supt. McKinney as a controller of police informant handlers and stated he is involved in the day-to-day management of informants.
He kept in line with the previous witnesses by reiterating all the fears, concerns and all the paranoia that informants now had, all of which the other police witnesses who had gone before him had raised. In cross-examination he did however accept that informants do have a choice, that being they are fully aware of the dangers there are by becoming an informant and do not have to become an informant, or having become an informant they are free to opt out at any time.
The inspect
or also conceded that there are many other jobs in the public domain which also have a fear factor and paranoia attached by persons carrying out such dangerous jobs such as a coal miner or a steeplejack. The inspector did not agree with Simon Woods’ statement about the difficulty in tracing persons back from 1888. Of course I reminded him that the police had not produced any evidence to challenge this statement.
This officer like all the other police witnesses before him in my opinion over exaggerated the fears and concerns of the police and this was confirmed by this witness who gave an example of tracing persons back and harm subsequently befalling living descendants. He raised the issue of Judas Iscariot from the Bible stating that if anyone could trace his bloodline back then any living relatives may come to harm. By making this ridiculous statement I hoped by this point it would now become clear to the tribunal that the police were totally over exaggerating their concerns in what I saw was a deliberate attempt to mislead them.
I should mention that this officer was the first witness on the final day and it soon became apparent during my cross-examination of him that overnight he may well have spoken to Supt. McKinney about what questions I had asked him in cross-examination. At times when I put specific questions to this officer, he was coming back with not only the answer to that question but adding to his answer by referring to other matters which I had not yet questioned him about, matters he could only have ascertained from Supt. McKinney’s testimony.
On the morning of May 12th all of the witness testimony concluded and the afternoon was taken up with all parties making their final submissions to the tribunal. Following this the judge announced that the decision of the tribunal would be formally announced within two-three weeks.
I left the hearing still quietly confident that I had presented a strong enough case to persuade the tribunal to rule in my favour and allow my appeal, but time would tell, it would be a long three weeks. I have to say that when I left the court for a time it felt like a big weight had been lifted from me. I had spent the past three years putting this case together. Without a doubt the biggest challenge I have ever had to endure. The last few months had been a mental and physical strain on me.
Jack the Ripper: The Secret Police Files Page 31