Ed Moloney Statement On Belfast High Court Judgement In Anthony McIntyre Case

Statement On Belfast High Court Judgement In Anthony McIntyre Case
Ed Moloney

The judgement by the Belfast High Court today upholding the PSNI-Boston College action to confiscate the tapes of interviews given by the project’s republican co-ordinator and principal interviewer, Anthony McIntyre comes as no surprise to those of us who have witnessed this process since it began over seven long years ago.

But with this action against McIntyre, the reality of what lies behind the PSNI action against the Boston archive is now clear for all to see.

At the outset, the authorities argued that the action to confiscate the Boston tapes was justified on the basis that they might lead to some light being shed upon the abduction and disappearance of Jean McConville, a widowed mother-of-ten who was accused by the Provisional IRA of spying for the British Army.

But Anthony McIntyre had nothing whatsoever to do with the McConville disappearance as everyone on this island knows.

His real offence, in the eyes of the state and the intelligence agencies that it directs, was to embark upon an independent effort to discover the truth, or as much of it as can be excavated, about the role played by one of the major players during the Troubles. This was done without the knowledge or approval of that organisation’s leadership, and that was possibly his real offence.

In doing that, with my aid and co-operation, he challenged the state’s claim to monopolise, along with trusted participants in the Troubles, the process of how, by whom and by what means the past in Northern Ireland should be examined.

That was Anthony McIntyre’s crime. That is why he is being pursued through the courts. His prosecution cum persecution is being carried out as a warning to others, in academia and the media, that this is what they can expect if they dare follow in his path.

This process has been dragged out for an unprecedented seven years. I suspect that has been deliberate and that the ongoing, never-ending Boston College (BC) case exists as a constant reminder of what can happen to anyone who dares imitate that project.

Political considerations have also dictated who the authorities have targeted. When a senior member of the BC Trustees complained about the one-sided, i.e. Republican bias of the prosecutions, the PSNI promptly sought access to ‘Winky’ Rea’s tapes in the UVF part of the archive and then charged him.

In recent weeks we have learned how MI5 and the police and military intelligence agencies devised the so-called ‘third connection’ to enable their agents to commit crimes, possibly as serious as murder, and not face any prosecution as a consequence.

This is the sort of dirty secret that the British state and its agencies are scared will emerge out of any truth-telling process that they cannot devise, direct and control.

We have also seen two television journalists involved in the production of the documentary film ‘No Stone Unturned’ arrested and questioned by detectives for the crime of doing their jobs as investigative reporters. It is hard to avoid the conclusion that the state is unalterably opposed to any who wish to investigate aspects of the past it believes should stay hidden.

Anthony McIntyre is being dragged through the courts as a warning to others: follow in his path at your peril. As acts of vindictiveness go, it has few equals.

Ed Moloney is the former director of Boston College Oral History Archive

Summary of Judgement, Boston Tapes Application

BOSTON TAPES APPLICATION DISMISSED
Summary of Judgment
Judicial Communications Office
22 October 2018

The Divisional Court today dismissed an application for an injunction by Anthony McIntyre restraining the Director of Public Prosecutions or the PSNI from making any further use of the interview materials obtained from the “Boston Tapes” project.

Background

Anthony McIntyre (“the applicant”) was convicted of membership of a proscribed organisation, the Irish Republican Army, and sentenced on 9 December 1974 to a period of two years’ imprisonment. He was subsequently convicted of one count of murder, three counts of attempted murder, one count of hijacking and one count of possession of a weapon with intent to endanger life. He was sentenced to life imprisonment with a recommended minimum term of 25 years. He appealed in respect of the murder charge and in 1979 the recommended minimum term was reduced to 20 years’ imprisonment.

In 2001 the applicant became involved in an academic oral history project known as the “Belfast Project” with the journalist and author Ed Moloney who was the project director. The project was sponsored by Boston College, Massachusetts, USA. The object of the project was to collect and preserve for academic research the recollections of members of republican and loyalist paramilitary organisations. The methodology was to gather first-hand testimony by way of voice recordings from participants. The project lasted from 2001 until May 2006. It began with interviews of former members of the Provisional IRA and was subsequently expanded to include interviews with former members of the Ulster Volunteer Force. The applicant was a researcher. He interviewed past participants in the conflict recording their personal recollections. Each participant gave the content of the recordings into the possession of Boston College for preservation. Access to the tapes was to be restricted until after the interviewee’s death except where they provided prior written authority for their use otherwise. The applicant maintains that it was always understood that the contents of the interviews might be accessible after death and that it was never envisaged that the contents would be accessed by the Police Service of Northern Ireland (“PSNI”) for the purposes of criminal investigation or prosecution.

In February 2011 mutual legal assistance was sought by the PSNI from the authorities in the USA to obtain tapes held by Boston College relating to interviews conducted with Republican participants touching upon the abduction and death of Jean McConville. This was resisted on the basis of the risks to the well-being of the researchers but the US court concluded that some of the materials should be provided to the UK authorities. In 2012 the applicant instituted proceedings in this jurisdiction seeking to prevent the PSNI from obtaining confidential archive material provided to the Trustees of Boston College Massachusetts USA but that application was dismissed in October 2012.

The applicant gave an interview to the BBC’s Spotlight programme broadcast in May 2014 in which he stated that he had provided an interview on tape to the organisers of the Boston College Project and that he had exposed himself “to exactly the same risks as anybody else was exposed to”. The PSNI interpreted that statement as suggesting that the applicant had disclosed criminal conduct in
his interview on tape. On 3 September 2014 the PSNI requested that the Public Prosecution Service (“PPS”) issue an International Letter of Request (“ILOR”) in respect of a criminal investigation it was carrying out into the following matters:

• A bomb attack on a house at Rugby Avenue on 6 February 1976. The PSNI claimed to have received information on that date the applicant was involved in the bomb attack. The applicant, however, maintains that he was in fact the target of the attack and that in any event if the attack was on the date alleged he was in police custody throughout that day;
• The detection in 1978 in the applicant’s possession of an imitation firearm while in custody in circumstances suggesting that he may be planning an escape from custody. The applicant states that this is a reference to an incomplete wooden gun in two parts which was found in a search cubicle in prison reception. He was questioned at the time of its discovery but not charged with any offence and
• Membership of an illegal organisation. That concerned inter alia intelligence allegedly suggesting that the applicant debriefed members of the Provisional IRA after their release from custody and was an officer of that organisation.

The International Letter of Request (“ILOR”)

The ILOR was issued on 9 February 2015 by the PPS to the Central Authority of the United States of America. The letter described the applicant and indicated that the PSNI was investigating the commission of a number of offences and grounded its investigation on the following information:

“(i) In 1974 the police received information that Anthony McIntyre was a member of the Official Irish Republican Army in the Markets area of Belfast;
(ii) In 1975 Anthony McIntyre was convicted of membership of an illegal organisation- namely the Irish Republican Army – and was sentenced to two years imprisonment:
(iii) In 1975 Anthony McIntyre was convicted of an offence of armed robbery carried out on behalf of the Irish Republican Army, he was sentenced to three years imprisonment,
(iv) In 1975 the police received information that Anthony McIntyre was a member of the Provisional Irish Republican Army,
(v) In 1976 the police received a report that Anthony McIntyre was the leader, or Officer Commanding, the Provisional Irish Republican Army in the Ormeau Road area of Belfast:
(vi) In 1976 the police received information that Anthony McIntyre was involved in a bomb attack on a house in Rugby Avenue, Belfast:
(vii) In 1976 the police received information that Anthony McIntyre was conducting debriefing sessions on behalf of the Provisional Irish Republican Army with persons who had been arrested and questioned by the British Army;
(viii) In 1976 Anthony McIntyre was convicted of the murder of Kenneth Lenaghan in Donegal Pass, Belfast. The PSNI believes that this murder was carried out by the Provisional Irish Republican Army, Anthony McIntyre was sentenced to life imprisonment for this offence; and
(ix) In 1978, in a prison transport vehicle, Anthony McIntyre was found to have a concealed imitation firearm. The PSNI believes this was to have been used in an escape attempt.”

There were a number of errors in the ILOR including reference to the incorrect date of birth of the applicant, the incorrect section of legislation in respect of an offence, an assertion that the applicant had been convicted of armed robbery in 1975 and sentenced to a period of imprisonment of three years when in fact there was no evidence to support that assertion and an incorrect date of conviction for the offence of membership of a proscribed organisation. Although the proceedings in the US were sealed the PPS asked the authorities on 16 June 2016 to unseal certain submissions in order to correct the errors in in advance of the issue by the court of its Order later the same day. The US court carried out an in camera review of the material and ordered that portions of the interviews were to be made available to the PSNI.

Leave

The applicant sought an injunction restraining the DPP or PSNI from taking any further steps in the utilisation of the interview materials. An interim Order to that effect was made by the Divisional Court and leave was granted to pursue grounds raising the following issues:

• The DPP had no reasonable grounds for suspecting that any or all of the specified offences had been committed by the applicant or that any investigation was being carried out in respect of them in advance of the issuance of the ILOR for the applicant’s interview materials;
• The DPP failed to satisfy himself that the doctrines of autrefois acquit and autrefois convict were not applicable to any of the specified offences prior to the issuance of the ILOR;
• The DPP failed to promulgate guidelines or to have regard to other published guidelines relating to the proper approach to be adopted with respect to ILORs;
• The PSNI and DPP had not acted in good faith and there was a breach of the duty of candour by the PPS, particularly in not transmitting to the US Central Authority exculpatory material provided by the applicant;
• The PSNI had acted unreasonably by engineering an investigation into moribund offences or offences which had already progressed to conviction or acquittal for the sole purpose of obtaining the relevant materials.

Consideration

The statutory conditions enabling the PPS to request assistance are: it must appear to the PPS that there are reasonable grounds for suspecting that an offence has been committed; that the offence is being investigated; and that the assistance sought is assistance in obtaining evidence specified in the request for use in the investigation. The Divisional Court accepted that the inference to be drawn from the materials is that there was no active investigation in respect of the applicant’s alleged criminal conduct prior to the Spotlight interview in May 2014. It considered, however, that the evidence presented to the court established that an investigation had been commenced between May and September 2014 and that in light of the intelligence material disclosed to the court the first two conditions were satisfied. There was some criticism of the suggestion that the requested material was likely to be of substantial value. The PPS indicated to the court that it “had no idea what it might contain” but the Divisional Court was satisfied that the evidence indicated that the assistance was sought in connection with the investigation, was judged to be likely to be relevant to the manner in which that investigation was pursued and that it was considered that its receipt would influence the course of the investigation. Accordingly the material sought was for use in the investigation and the third condition was also satisfied.

The Court referred to two recent cases which discuss the further obligations to which a requesting state is subject. The core of the applicant’s complaint in this case was that there had been a breach of the duty of good faith and that a duty of candour had been owed to him which had also been breached. As evidence of the breach of good faith the applicant relied on the errors within the ILOR. The applicant pointed to the secrecy attaching to the process and complained about the reluctance of the respondents to disclose the ILOR until late in the proceedings. The Divisional Court did not accept that the preservation of confidentiality in the course of a criminal investigation is evidence of a breach of the duty of good faith but we are satisfied that the content of the ILOR could and should have been disclosed at an earlier stage in these proceedings. The Court did agree that there was a “disappointing lack of care” in the preparation of the ILOR but it did not accept that evidence of such a lack of care translates into breach of the duty of good faith which applies in such cases:

“The applicant sought to undermine the evidence that an investigation was ongoing and that the PPS had reasonable grounds for requesting the evidence in connection with an investigation into offences committed by the applicant by adducing evidence from him and the householder in Rugby Avenue supporting the identification of the culprits as loyalists. The basis, however, for the investigation of the applicant’s involvement in the bomb attack is intelligence based. The fact that exculpatory evidence was introduced on behalf of the applicant did not diminish the importance of the intelligence led evidence. The submission of the PSNI to the PPS dated 3 September 2014 was clear evidence that an investigation into the applicant’s criminal conduct was ongoing, that it was largely intelligence based, that it concerned offences in connection with the bomb attack at Rugby Avenue in 1976, the circumstances in which the applicant had certain items in his possession while being transported from the prison in 1978 and his alleged membership of the Provisional IRA. We do not accept that the criticisms set out above provide any basis for the conclusion that there was a breach of the duty of good faith. The offences in respect of which the materials were to be used had to be set out comprehensively since any use in respect of other offences was prohibited … unless the requested authority consented to that use.”

The applicant also contended that there was a duty of candour requiring the disclosure to the requested state of any exculpatory material available to the investigators. The Divisional Court, however, did not accept that the respondents were subject to such a duty in respect of disclosure. Section 32 (1)(d) of the Police (Northern Ireland) Act 2000 it is the general duty of the police to take measures to bring the offender to justice where an offence has been committed. In doing so the investigation will often disclose inculpatory and exculpatory material and it is the responsibility of the police to conduct its investigation by reference to all the evidence. Where an ILOR is requested, that may be for an inculpatory or exculpatory purpose. The Divisional Court held that the use to which the material is put is clearly a matter for the police. The duty of good faith applies to the requesting authorities and would be breached in circumstances where the request relied upon evidence which had been so undermined by other material that it did not provide a bona fide basis for the investigation. The Court said that was not the case in these proceedings:

“The material upon which the police rely for the pursuit of this case is intelligence material. The applicant contends that the intelligence material is mistaken but that does not undermine the relevance of the intelligence material to the investigation. Since the exculpatory material advanced by the applicant could not undermine the relevance of the request for the investigation the duty of good faith did not require its disclosure.”

The Divisional Court in Northern Ireland considered in 2015 that the creation and publication of guidelines for prosecutors seeking international assistance might be of assistance bearing in mind that Article 8 was engaged. The Divisional Court in this case agreed that the publication of such
guidelines would be of assistance and it encouraged the PPS to take up this suggestion. The Court, however, went on to review the relevant parts of the guidance on extradition published by the Crown Prosecution Service (“CPS”). The guidelines applicable to requests for international assistance indicate that there should be a nexus between the facts of the case and the assistance requested. If coercive measures such as a search warrant are required the letter of request should indicate clearly that such measures are necessary, appropriate and proportionate. The guidance also indicates that the request should relate to specific evidence rather than being a “fishing expedition”. The Court held that the request in this case was necessary, appropriate and proportionate in the investigation of crime and was in respect of specific evidence.

The guidance further indicates that a summary of the case should be available which satisfies the prosecutor that an offence has been committed or that there are reasonable grounds for suspecting this to be the case. Confirmation is also required that the alleged criminality is under formal investigation. The Divisional Court was satisfied that the PSNI request of 3 September 2014 met those tests. It was suggested that there should have been a request to this applicant to consent to the provision of the material but the Court said it was clear that this applicant who had previously resisted attempts to secure such evidence in other cases would do the same in his own case.

The final issue raised was the engagement of Article 8. The Divisional Court considered that, assuming there is an interference with the private life of the applicant, it is for the purpose of the prevention of crime, it is in accordance with law and that this internationally recognised system provides the only method of securing the material. The interference in this case is potentially limited by the need to show relevance in the requested state, the obligation under the statute to return the material in the event that it is not used and the application by the PPS of the evidential and public interest tests before it could be used in a prosecution:

“The public interest in the investigation and, if appropriate, prosecution of serious terrorist offences significantly outweighs the interference with private life in this case.”

Conclusion

The Divisional Court concluded:

• At the time of the written request by the PSNI to the PPS on 3 September 2014 an investigation into the applicant’s criminal involvement in the explosion at Rugby Avenue, Belfast, his possession of an imitation firearm and his membership of the IRA was ongoing and continues;
• The PSNI and the PPS sought the interview tapes for use in those investigations;
• The errors in the ILOR were due to a distinct and surprising lack of care on the part of the PSNI and the PPS;
• The errors in the ILOR were not indicative of bad faith;
• The errors in the ILOR were not material to the request except insofar as the wrong section of the 1969 Act was included and that was corrected before the Order of the US court;
• There is not a duty of candour which required the disclosure by the PPS to the US Central Authority of any exculpatory material put forward by the applicant;
• The exculpatory material introduced by the applicant does not undermine the entitlement of the PSNI to investigate the matters contained in the intelligence material pointing to the involvement of the applicant in the offences;
• There is a duty of good faith on the PPS and PSNI in respect of the pursuit of an ILOR request but there was no breach of that duty;
• The US District Court had no role in determining whether a particular line of PSNI enquiry was appropriate and in this case the exculpatory material upon which the applicant relies was not relevant to the determination of the request;
• As the exculpatory material did not undermine the basis of the request or suggest any bad faith in pursuing the ILOR its disclosure to the US authorities was not required;
• There was no breach of Article 8 of the Convention.

The application was dismissed.

NOTES TO EDITORS

This summary should be read together with the judgment and should not be read in isolation. Nothing said in this summary adds to or amends the judgment. The full judgment will be available on the Judiciary NI website (https://judiciaryni.uk).

Farcical High Court Decision Backs PSNI Farce

Farcical High Court Decision Backs PSNI Farce
Chris Bray
The Shade of the Cloud of Arrows

I am now convinced that the Police Service of Northern Ireland is an elaborate prank, a kind of brilliantly large-scale Candid Camera — and the courts are totally on on the joke.

Let’s start with some background. Feel free to skip to the heading WOODSHOP FELONY below if you’ve been following the Belfast Project subpoenas closely (you poor bastard) and don’t need to go through the whole farce again.

In 2011, investigating a 1972 murder that they had ignored for thirty-nine years, the Police Service of Northern Ireland went shopping for unearned confessions in a historical archive in the United States. The subpoenas served on Boston College were, the claim went, desperately necessary, investigative tools scratching away the truth behind the most serious of crimes: the kidnapping, murder, and secret burial of a widowed mother of ten children, Jean McConville, killed by the Provisional IRA as a suspected informer in the employ of the British army in Belfast.

Locked away in a university library, the Belfast Project tapes supposedly held the answers; consisting of frank oral history interviews with former members of paramilitary organizations, they would allow the authorities to bring a set of killers to justice. The headlines said so, plainly and uncritically. “Tapes Hold N. Ireland Murder Secrets,” CNN reported. It was all pretty simple: Get the tapes, press the “play” button, make some arrests.

The police got the tapes they sought, but it doesn’t appear that the police got their Northern Ireland murder secrets. More than seven years later, no one has ever been brought to trial over McConville’s murder, or on any other crime supposedly exposed by the tapes. One elderly man, allegedly a former Provisional IRA member of high rank, was charged more than four years ago with crimes related to the killing, but his case has become the Jarndyce v. Jarndyce of the criminal courts — forever subject to status conferences, forever unresolved.

Following another, later subpoena, another set of charges were brought against another elderly man alleged to have once been a ranking member of a Loyalist paramilitary organization. Those charges have also gone Full Kafka, forever wandering the hallways of the courts of Northern Ireland and rattling their chains. One day the sun will implode, our solar system will vanish into a black hole, and the charges brought on the basis of the Belfast Project tapes will finally meet their resolution.

WOODSHOP FELONY

But now the farce of the Belfast Project tapes has become something else altogether, the word for which probably hasn’t been coined, yet. We’ll need a neologism that combines the ideas of raw sewage, things of microscopic importance, and pure farce. (This would be easier if we all spoke German.)

In 2014, circling back to a source that had brought them no form of success in court at all, law enforcement authorities in Northern Ireland asked the U.S. Department of Justice to promulgate a new Belfast Project subpoena. This time, the PSNI was seeking the recorded interviews archived at Boston College in which a Belfast Project researcher, Anthony McIntyre (a former Long Kesh prisoner who has a PhD in history), is said to have discussed his own role in the Provisional IRA.

Federal authorities in Boston got McIntyre’s interview materials, and the DOJ sent them off to Belfast. But McIntyre went to court to stop the police from reading the transcripts or listening to the tapes. This week, the High Court in Belfast issued a decision in McIntyre’s legal challenge, which they heard almost a year ago.

The decision is, God help us all, comic opera. It makes the farcical nature of the whole production abundantly clear, while attempting to manage the discussion within the boundaries of language that declares that this is terribly serious judicial business. I have a draft copy, not yet signed by the court, and the court has posted a summary of the decision here (link opens to PDF file). I’ll stick to discussing the publicly available summary until the whole decision becomes public.

Now, remember that this all began, seven years ago, with a great deal of somber tut-tutting about the seriousness of the Belfast Project subpoenas, and the urgent work of the PSNI as it raced down the trail after some murderers. So take a look at the summary posted by the court, which describes the matters now being investigated by the PSNI with regard to Anthony McIntyre:

On 3 September 2014 the PSNI requested that the Public Prosecution Service (“PPS”) issue an International Letter of Request (“ILOR”) in respect of a criminal investigation it was carrying out into the following matters:

[….]

The detection in 1978 in the applicant’s possession of an imitation firearm while in custody in circumstances suggesting that he may be planning an escape from custody. The applicant states that this is a reference to an incomplete wooden gun in two parts which was found in a search cubicle in prison reception. He was questioned at the time of its discovery but not charged with any offence.

Note that this sentence about events in the 1970s begins with “the detection,” at the time, of the thing being discussed. So in 1978, prison officials caught Anthony McIntyre with some pieces of wood, which they suspected, probably for good reason, that he was planning to turn into a fake gun so he could bluff his way out of prison. They questioned him about it but decided not to charge him with a crime. Thirty-six years later, the PSNI decided to conduct an investigation to determine if Anthony McIntyre had possessed some pieces of wood that could be turned into a fake gun for use in an attempt at a prison escape, and they went through the complex and difficult process of obtaining international legal assistance to subpoena interview materials archived in another country.

The reason the PSNI suspected that Anthony McIntyre had once possessed wooden materials that could be used to make a fake gun was that, nearly four decades ago, prison officials in Northern Ireland caught Anthony McIntyre in possession of wooden materials that could be used to make a fake gun.

We suspect this man of Crime X because forty years ago he was caught committing it, so now we need to find out if he committed the crime that we know about because we know he was caught committing it.

Tweedle-Dee and Tweedle-Dum, ladies and gentlemen.

The PSNI used the Mutual Legal Assistance Treaty between the United Kingdom and the United States in an attempt to find out if Anthony McIntyre hid some wood in his socks forty years ago, a thing they already knew he did.

But let’s keep going, and take a look at the other things the PSNI supposedly set out to investigate by digging into McIntyre’s Belfast Project tapes. Like this:

“Membership of an illegal organisation.”

Goodness yes: Let’s use international legal assistance to conduct an investigation to find out if Anthony McIntyre was ever a member of the Provisional IRA, more than forty years after the time he was actually convicted on that charge. McIntyre’s own website, by the way, has a review of his book on Irish republicanism, which describes McIntyre as “a historian, a former member of the IRA and a onetime party activist with extensive contacts in the organisation.” It took me five seconds on Google to come up with that one — but I don’t have the option of asking the Department of Justice to issue subpoenas on my behalf, so I was forced to fall back on other means.

Finally, the PSNI suspects that McIntyre carried out a bombing, with a few problems:

“A bomb attack on a house at Rugby Avenue on 6 February 1976. The PSNI claimed to have received information on that date the applicant was involved in the bomb attack. The applicant, however, maintains that he was in fact the target of the attack and that in any event if the attack was on the date alleged he was in police custody throughout that day.”

More about the Rugby Avenue bomb later, when the full decision is available, but alleging in an international letter of assistance that McIntyre bombed somebody’s house on a day when he was in police custody is an interesting choice.

Analyzing the international letter of assistance — the letter the PSNI asked Northern Ireland’s Public Prosecution Service to prepare in order to ask American law enforcement officials for help — the High Court acknowledges in its decision that the police and prosecutors made a hash of the whole thing. From the summary released by the court, and take a moment to read this carefully:

“There were a number of errors in the ILOR including reference to the incorrect date of birth of the applicant, the incorrect section of legislation in respect of an offence, an assertion that the applicant had been convicted of armed robbery in 1975 and sentenced to a period of imprisonment of three years when in fact there was no evidence to support that assertion and an incorrect date of Judicial conviction for the offence of membership of a proscribed organisation.”

So the police set out to investigate whether Anthony McIntyre once possessed some wood that they suspect he possessed because they know he possessed it, and also set out to learn if a convicted IRA member had ever been in the IRA, and also set out to determine if he blew up somebody’s house on a date when he was locked up in the police station, and when they wrote the letter outlining their investigation, they got most of the supporting facts totally wrong.

These two conclusions come one after the other in the summary of the decision posted on the court website:

• The errors in the ILOR were due to a distinct and surprising lack of care on the part of the PSNI and the PPS;

• The errors in the ILOR were not indicative of bad faith.

Got that? They fucked up everything they touched, which we’re pretty sure proves that they were trying to be careful and do a good job.

More to come.

 

Boston Tapes: Ex-IRA man loses fight over secret tapes

Boston Tapes: Ex-IRA man loses fight over secret tapes
22 October 2018
BBC News
Former IRA man Anthony McIntyre was a lead researcher on the oral history project

A former IRA member has failed in his bid to stop police getting hold of secret interviews he gave to a US university.

Anthony McIntyre is among a number of ex-paramilitaries who gave confidential testimonies to Boston College about their role during the Troubles.

The convicted murderer was also a lead researcher on the oral history project, known as the Boston tapes.

The High Court has given him two weeks to apply to appeal the verdict.

It means the Police Service of Northern Ireland (PSNI) is not yet be able to examine recordings which have already been transported from the United States to Belfast.

Lord Chief Justice Sir Declan Morgan said: “We will direct that the material should be held in secure storage, under seal, at the Royal Courts of Justice.”

Anthony McIntyre was one of the main researchers in the Boston College project to compile an oral history of the Troubles in Northern Ireland.

Originally from Belfast, he was jailed for murder in 1977.

Boston College’s Belfast project secured candid interviews with both loyalist and republican paramilitaries, who spoke about their personal involvement in Troubles-era violence.

The interviews were arranged under the condition that the material would not be made public until the death of the individual interviewee.

‘Mistakes’

The recordings were held in a library at Boston College but in 2011, the PSNI began a legal bid to gain access to the tapes.

The officers have already secured transcripts and tapes of interviews given by former IRA woman Dolours Price and high-profile loyalist Winston “Winkie” Rea.

The British government then served Boston College with a subpoena seeking copies of Mr McIntyre interviews, but he tried to stop the process by seeking a judicial review.

Mr McIntyre lawyers claimed police and prosecutors should not be allowed to access the tapes due to mistakes in an International Letter of Request (ILOR) which set out a list of alleged offences which officers are investigating.

The ILOR list included a bomb explosion at Rugby Avenue in Belfast in 1976, but Mr McIntyre’s legal team insisted that he was a victim in the bombing.

‘Subterfuge’

They also argued the ILOR was littered with other inaccuracies, including an armed robbery for which their client was never convicted and IRA membership charge of which he was acquitted.

The Public Prosecution Service’s legal team told the court that mistaken information in the original correspondence had been corrected and regularised.

A PPS lawyer also rejected any suggestion the Rugby Avenue explosion was being used as an act of “subterfuge” to gain access to Mr McIntyre’s Boston College tapes.

A panel of judges at Belfast High Court ruled that any flaws in the ILOR process were not due to bad faith on the part of the authorities.

They dismissed Mr McIntyre’s application but said he would have two weeks to confirm his intention to appeal the verdict.

Attempt to access former IRA man’s Boston College tapes ‘replete with errors’ court told

Attempt to access former IRA man’s Boston College tapes ‘replete with errors’ court told
Lawyers for Anthony McIntyre and a senior judge both identified errors in the request letter setting out alleged offences under police investigation
Alan Erwin
Irish Times
January 16, 2018

A transatlantic process to obtain a former IRA man’s confidential interviews with an American university project was “replete with errors”, the High Court in Belfast heard today.

Lawyers for Anthony McIntyre and a senior judge both identified errors in the request letter setting out alleged offences under police investigation.

McIntyre is locked in a legal battle to stop detectives obtaining taped recordings of his participation in the Boston College project.

Reserving judgment following a series of hearings, Lord Chief Justice Sir Declan Morgan said: “We want to consider the voluminous papers and recent submissions.”

McIntyre was one of the main researchers in the initiative to compile an oral history of the conflict in Northern Ireland. Dozens of loyalists and republicans provided testimonies on the understanding their accounts would remain confidential while they are alive. But those assurances were dealt a blow after police secured transcripts and tapes of interviews given by former IRA woman Dolours Price and high-profile loyalist Winston “Winkie” Rea.

Now detectives want access to McIntyre’s recorded recollection of his own IRA activities as part of investigations into alleged terrorist offences stretching back more than 40 years.

A subpoena seeking copies of his interviews was served on Boston College by the British government.

The move involved an International Letter of Request (ILOR) setting out alleged offences being probed, including a bomb explosion at Rugby Avenue in Belfast in 1976, and membership of a proscribed organisation.

Although the tapes were released and flown from America, they remain under seal within the court until the legal challenge is determined.

McIntyre, who is from Belfast but now lives in the Republic, is seeking to judicially review the PSNI and Public Prosecution Service (PPS) for issuing an ILOR his lawyers claim is littered with inaccuracies. They insisted that he was the victim in the bombing, and that he was acquitted of the membership charge that features in the ILOR.

Other alleged mistakes said to feature in the letter include an armed robbery incident for which McIntyre was never convicted.

As final submissions were made in court today, another of the three judges, Sir Reg Weir, stressed the importance of accuracy in the documents. “This is replete with errors,” he said.

Counsel for the respondents was pressed for confirmation on exactly when the explosion under investigation had occurred.

Sir Reg continued: “You would think police would know what date the bomb went off, this wasn’t a case about a stolen bicycle.”

Peter Coll QC, representing the PPS, replied that bombings were not a rare occurrence in Belfast at the time.

He insisted that any mistaken information in the original correspondence had been corrected and regularised.

Mr Coll also rejected any suggestion that police and prosecutors were pretending to investigate the Rugby Avenue incident as an act of “subterfuge” to gain access to McIntyre’s Boston College tapes.

Instead, he contended, the former IRA man’s legal case was “built on sand”. According to the barrister the legal challenge amounted to a suggestion that the court should supervise a police investigation.

“That is wrong and should not be encouraged,” he said.

But Ronan Lavery QC, for McIntyre, insisted the ILOR should have been withdrawn because of the amount of errors within it.

He also submitted: “It’s striking, considering the budget difficulties on investigations which are live, have never been resolved and in which there are victims, that police time and money should be spent on investigating crimes of this vintage of someone who has already served a lengthy term in prison.

“One wonders how this has been prioritised in this way.”

Boston Tapes: Deadline set in ex-IRA man Anthony McIntyre case

Boston Tapes: Deadline set in ex-IRA man Anthony McIntyre case
BBC News
13 November 2017

Police and prosecutors have been given two weeks to provide reasons why recorded interviews with a former IRA man should not be sent back to America.

High Court judges sitting in Belfast set the deadline in Anthony McIntyre’s legal battle against police accessing his “Boston tapes”.

The tapes are candid interviews with loyalist and republican paramilitaries held in a library at Boston College.

Dozens of loyalists and republicans provided testimonies to the college.

They spoke on the understanding that their stories would remain confidential while they were alive.

But those assurances were dealt a blow after police secured transcripts and tapes of interviews given by former IRA woman Dolours Price and high-profile loyalist Winston “Winkie” Rea.

Now the PSNI wants access to Anthony McIntyre’s recorded recollections as part of investigations into alleged terrorist offences stretching back more than 40 years.

He was one of the main researchers in the project to compile an oral history of the conflict in Northern Ireland.

A subpoena seeking copies of his interviews was served on Boston College by the Government.

It concerned an International Letter of Request (ILOR) setting out alleged offences, including a bomb explosion at Rugby Avenue in Belfast in 1976 and membership of a proscribed organisation.

The tapes were released and flown from America, but they remain under seal within the court pending the judges’ ruling.

Anthony McIntyre, who is from Belfast but now lives in the Republic of Ireland, is seeking to judicially review the PSNI and Public Prosecution Service (PPS) for issuing an ILOR which, his lawyers say, is “replete with errors”.

They insist that he was the victim in the bombing and that he was acquitted of the membership charge that features in the ILOR.

Written submissions

As the case returned to court on Monday, Lord Chief Justice Sir Declan Morgan referred to defects and inaccuracies said to feature in the letter – including an armed robbery for which Anthony McIntyre was never convicted.

Despite the prosecution’s submissions that those mistakes were highlighted, Sir Declan expressed uncertainly about how the process was dealt with in America.

“We don’t know what happened as a result of the corrective steps taken by the PPS,” Sir Declan said.

He put it to the parties: “Should we not act in accordance with the law and send the material back?”

Following deliberations with his two judicial colleagues, the Lord Chief Justice confirmed the fortnight’s deadline.

He told the PPS and PSNI that they must lodge any further written submission within two weeks as to why it should be presumed that defects within the ILOR were regularised.

The court will then deliver judgment or list the case for a further hearing in January.

The PSNI, PPS, US DoJ and Boston College: A Long Game of Blindfolded Darts

A Long Game of Blindfolded Darts
Chris Bray
Chris Bray Blog
24 June 2016

I’ve been arguing for years that the Belfast Project subpoenas aren’t an example of a police investigation, but rather offer proof that police in Northern Ireland are engaged in a theatrical performance and refusing to perform real detective work. Events in Belfast courts this week prove the point.

First, in a hearing regarding an American subpoena requested by the PSNI for Belfast Project interviews conducted with Anthony McIntyre, lawyers for McIntyre argued that the International Letter of Request (ILOR) sent by the British government to the U.S. government was “replete with errors, and that’s putting it mildly.” Among the errors alleged by McIntyre’s lawyers were claims made in the ILOR that McIntyre had previously been convicted for offenses for which he had actually been acquitted or never charged.

In response, lawyers for the police and the prosecution service made no argument at all, neither conceding nor rejecting the claim; instead, they told the judges hearing the case that they would have to look into it. “Counsel for the respondents were unable to confirm the claim, insisting archives would have to be checked,” the Irish Newsreported (emphasis added). Here’s what comes next in that newspaper story:

Lord Justice Weatherup, sitting with Lord Justice Weir, described the situation as unsatisfactory.

“It’s incredible; you have sent a letter to America… and you don’t know whether it was in respect of an offence for which he’s already been acquitted,” he said.

So the Police Service of Northern Ireland initiated a request for the U.S. Department of Justice to subpoena an academic archive in Boston, and now — now, after making an international request for legal assistance in a supposed criminal investigation — have begun to look into the factual background their own case. Oh, yeah, man, we’ll go, like, check the archives and stuff.

The laziness, shoddiness, indifference to professional standards, and general halfassedness scream across an ocean at the American prosecutors who are playing along with this nonsense. These worthless idiots sent off an ILOR, then started to think about what they were up to. (A pattern emerges, by the way.) I’m not in Belfast to check, but I assume the PSNI’s detectives drool on themselves and shit their pants.

Meanwhile, in another hearing over a different set of Belfast Project interviews, a different judge heard a legal challenge to the evidence obtained in the case of Ivor Bell, who is accused of aiding and abetting in the 1972 murder of Jean McConville. The federal appeals court in Boston, narrowing the decision of a district court judge, ordered that only two interviews with the interview subject known as “Z” — who is alleged, but not proven, to be Bell — be handed over to the PSNI. In fact, Bell’s lawyers claim, authorities in Belfast are attempting to go to court with several more of the Belfast Project’s “Z” interviews, evidence obtained far beyond the scope of the American court order.

Of course, Bell was charged in early 2014; now, two and a half years later, prosecutors in Belfast can’t even get their evidence into the courtroom for a preliminary inquiry, much less a trial.

One week, two shambles.

Meanwhile, note the incredible statement at the conclusion of the Irish News story on the McIntyre hearing, linked above: A lawyer for the PSNI’s chief constable “suggested PSNI officers who will be in Boston on Saturday to collect other materials could also bring back the McIntyre recordings and deposit them, still sealed, with the court.

The PSNI has gone back to Boston, in at least one other international request for a subpoena that has not yet been disclosed. They keep churning up garbage with their shoddy trips to Boston, and they keep going back to Boston.

Will anyone ever restrain this idiots? They’re embarrassing themselves, damaging the legitimacy of Northern Ireland’s political institutions, wasting the DOJ’s time, angering Belfast judges, and making a clown show of the rule of law. And the U.S. government keeps shrugging and typing up the subpoenas.

Ex-IRA man denies bomb attack in new Boston College twist

Ex-IRA man denies bomb attack in new Boston College twist
newsletter.co.uk
23 June 2016

A former IRA man interviewed for an American university project claims he was the victim of a bomb attack for which he is now under investigation, the High Court has heard.

Anthony McIntyre also alleges he was acquitted on a charge of membership of a proscribed organisation that forms part of a police attempt to gain access to his tapes from Boston College.

Senior judges in Belfast have now ordered the PSNI and Public Prosecution Service to clarify the situation and explain how an International Letter of Request (ILOR) for the material wrongly included an erroneous conviction for armed robbery.

McIntyre’s legal bid to stop detectives listening to the tapes has been put on hold until explanations are provided and shared with American authorities.

With the case adjourned until September, PSNI officers due to travel to Boston on Saturday as part of a separate inquiry will not yet be able to take possession of the his recordings.

McIntyre, who is from Belfast but now lives in the Irish Republic, was one of the main researchers in the major project to compile an oral history of the conflict in Northern Ireland.

Dozens of loyalists and republicans provided testimonies to Boston College on the understanding their account would only be made public after they died.

But those assurances were dealt a blow when legal battles resulted in police securing transcripts and tapes of interviews given by former IRA woman Dolours Price and high-profile loyalist Winston “Winkie” Rea.

Rea, 65, from Groomsport, Co Down, appeared before a court earlier this month charged with the murders of two Catholic workmen in Belfast more than 25 years ago.

Now the authorities want access to McIntyre’s recorded recollection of his own IRA activities.

A subpoena seeking copies of his interviews has been served on Boston College by the British government.

The move involves an ILOR setting out alleged offences being investigated.

McIntyre’s lawyers have issued judicial review proceedings against the PSNI and PPS for issuing the request letter.

In court on Thursday it emerged that the alleged offences being investigate include a bomb explosion at Rugby Avenue in Belfast in 1976, and an imitation or toy pistol discovered inside a prison where he served time.

Ronan Lavery QC, for McIntyre, claimed: “The ILOR is replete with errors, and that’s putting it mildly.”

Disputing any suggestion that his client was behind the bombing incident, he added: “In relation to the explosion on Rugby Avenue Mr McIntyre (says he) was the victim.”

It was also contended that the former IRA man was acquitted more than 30 years ago of a membership charge that features in the international letter.

Counsel for the respondents were unable to confirm the claim, insisting archives would have to be checked.

Lord Justice Weatherup, sitting with Lord Justice Weir, described the situation as unsatisfactory.

“It’s incredible; you have sent a letter to America … and you don’t know whether it was in respect of an offence for which he’s already been acquitted,” he said.

During the hearing it was accepted that an armed robbery incident for which McIntyre was never convicted was erroneously included in the ILOR.

But judges were told the mistake was brought to the attention of the US court before any decision was taken on releasing the tapes.

Tony McGleenan QC, for the chief constable, contended that McIntyre was raising speculative points that may prove to be groundless.

He suggested PSNI officers who will be in Boston on Saturday to collect other materials could also bring back the McIntyre recordings and deposit them, still sealed, with the court.

However, Lord Justice Weatherup instead directed the PSNI and PPS to first file a statement explaining the issues raised.

Outside court McIntyre’s solicitor, Gavin Booth of KRW Law, claimed the international request process was unlawful and conducted in bad faith.

He added: “The court’s order clearly reflects concerns it has with regard to certain statements which have been made in the ILOR.”

Boston College subpoenaed for Anthony McIntyre interviews

Boston College subpoenaed for Anthony McIntyre interviews
British government seeks access to taped interview by former IRA prisoner
Gerry Moriarty
The Irish Times
Mon, Apr 25, 2016

The British government has lodged a subpoena with Boston College seeking access to taped interviews given by former IRA prisoner Dr Anthony McIntyre, it was stated on Monday.

Ed Moloney and Wilson McArthur, who were centrally involved with the Belfast Project – an oral history of the Troubles – said that the British government, acting on behalf of the PSNI and the office of the North’s Director of Public Prosecution, had served a subpoena on Boston College seeking access to Dr McIntyre’s personal interviews.

Former director of the project Mr Moloney and Mr McArthur, who interviewed former UVF members for the oral history, accused the authorities of engaging in an illegal “fishing expedition” in seeking access to Dr McIntyre’s tapes.

Boston College’s spokesman Jack Dunn said that the “subpoena was issued in proceedings that the United States District Court ordered sealed, and Boston College was requested to treat the proceedings and the subpoena as confidential”.

“Nevertheless, the university notified Mr McIntyre of the subpoena because it concluded that he should know that his materials had been requested. Given that the pending proceedings remain under seal, Boston College is not able to comment further on the matter,” added Mr Dunn.

Historian Dr McIntyre, who served time in prison on an IRA murder conviction, and Mr McArthur respectively interviewed 26 republican and 20 loyalist former paramilitaries for the project.

Dr McIntyre also gave an interview about his IRA involvement during the Troubles to another interviewer as part of the project.

Interviewees were given commitments that there would be no disclosure of their interviews until after their deaths. Two of those who gave interviews were former senior IRA figure Brendan Hughes and former UVF member and Progressive Unionist Party leader David Ervine.

After their deaths their testimonies were included in a book by Mr Moloney called “Voices From the Grave” which contained information from Mr Hughes about the IRA’s abduction, murder and disappearance of Jean McConville in 1972.

Subsequently, as part of its investigation of Ms McConville’s murder the PSNI sought access to the Boston tapes. Ultimately under legal pressure Boston College handed over a number of tapes that are believed to contain reference to Ms McConville.

The release of the tapes also resulted in the arrest of veteran republican Ivor Bell (79) who also engaged with the project. He is charged with aiding and abetting in Ms McConville’s murder as well as membership of the IRA. His trial has yet to take place.

“This action by the DPP and PSNI is simply a fishing expedition, which is prohibited by international law,” said Mr Moloney and Mr McArthur.

“We do know, in particular, that this request does not have anything to do with the disappearance and murder of Jean McConville, which was the event that motivated this PSNI trawl five years ago,” they added.

“The subpoena request provides no details of specific charge, investigation or offence of which Dr McIntyre is accused, no names of alleged victims, no dates, no places. Instead the originators of this shoddy document mention matters which are so over-broad, that literally anyone alive during the Troubles in Northern Ireland could be accused of some association with them,” said Mr Moloney and Mr McArthur.

They added that Dr McIntyre has engaged Belfast human rights solicitor Kevin Winters “to resist these efforts to raid his personal memoirs”.

Mr Moloney and Mr McArthur said the arrest and charging of Mr Bell was an “abuse of process” as was the action against Dr McIntyre. They called on the Irish Government “not to co-operate with the British authorities should any effort be made to extradite Dr McIntyre from his home in Drogheda to Belfast for the purposes of yet another futile and inordinately expensive show trial”.

They added that the DPP and PSNI had requested, and the US Department of Justice had agreed, to a “demand that Boston College keep these legal proceedings secret, away from the prying eyes of the international press”.

The PSNI said it was not “commenting on the matter” while the DPP’s office was not in a position to comment at this stage. At the time of writing there was no response to queries from the Northern Ireland Office.

US Authorities Subpoena Anthony McIntyre’s Boston College Oral History Archive on Behalf of British

PSNI Serve ‘Fishing Expedition’ Subpoena On Anthony McIntyre –
US Agrees To ‘Star Chamber’ Hearing In Blatant Abuse of Process
April 25th, 2016

We have just learned that the British government, acting on behalf of the Police Service of Northern Ireland (“PSNI”) and the office of the Director of Public Prosecution (“DPP”) in Belfast, have served a subpoena on Boston College seeking personal interviews given by Dr. Anthony McIntyre to the Belfast Project based at Boston College, Massachusetts.

The subpoena has been served under the terms of the Mutual Legal Assistance Treaty (“MLAT”) and the UK statute, the Crime International Cooperation Act 2003 (“CICA”).

Dr. McIntyre, who was lead IRA researcher for the Belfast project, gave a series of interviews himself which were conducted by a guest interviewer. Dr McIntyre has made no secret of this fact. He has now engaged leading Belfast human rights lawyer Kevin Winters of KRW Law LLP, to resist these efforts to raid his personal memoirs.

FISHING EXPEDITION

The subpoena request provides no details of specific charge, investigation or offence of which Dr. McIntyre is accused, no names of alleged victims, no dates, no places. Instead the originators of this shoddy document mention matters which are so overbroad, that literally anyone alive during the Troubles in Northern Ireland could be accused of some association with them.

We do know, in particular, that this request does not have anything to do with the disappearance and murder of Jean McConville, which was the event that motivated this PSNI trawl five years ago. Both the US District Court and the US Court of Appeals for the First Circuit clearly deemed Dr. McIntyre’s interviews not to be relevant to the Jean McConville investigation.

Under the terms of the MLAT and CICA, which the authors of the subpoena claim as their legal basis for this action, requests for assistance from a foreign power may only be made where (a) there are reasonable grounds for suspecting that an offence has been committed, and (b) proceedings have been instituted, or an offence is being investigated. There are no proceedings in being for any offences relating to Dr. McIntyre and there is no reason to believe that any current or historical offence is being investigated.

This action by the DPP and PSNI is simply a fishing expedition, which is prohibited by international law.

GAGGING NOTICE

Boston College has been ordered to appear at the John Joseph Moakley Courthouse in Boston at 10 a.m. on May 6th to deliver Dr. McIntyre’s interviews.

The DPP and PSNI have requested, and the Obama Department of Justice has agreed, to demand that Boston College keep these legal proceedings secret, away from the pryng eyes of the international press. This Press Release puts paid to those nefarious efforts.

The gag notice means that the attempts of the British authorities once again to stifle academic research into the Troubles of Northern Ireland, an essential part of the peace process, was to be conducted entirely in secret like some modern day Star Chamber.

The use of secret courts offends every principle of legal fairness and openness inherent in the American legal system, as well as best international human rights practices, and we call on the media, in particular, whose First Amendment rights to cover such events are being undermined, to protest by turning up at the courthouse at 10:00 a.m. on May 6, 2016.

Secret courts and censored hearings smack of totalitarianism and they offend the public’s right to know.

REVENGE THE ONLY EXPLICABLE MOTIVE

The British authorities, the PSNI and the DPP have had more than ample time and opportunity to subpoena Dr.McIntyre’s materials before this. This begs the question, why are the authorities doing this now?

What is the real reason for this subpoena?

One explanation which leaps to mind is that this is an act of simple revenge, motivated by anger at the fact that the resistance to the subpoenas led by Dr. McIntyre embarrassed the prosecutorial authorities in Belfast, which have so far failed to bring any prosecution beyond the preliminary inquiry stage, never mind a successful conclusion to their well-publicized efforts in raiding and destroying a valuable Oral History archive. This is pay back, in other words.

ABUSE OF PROCESS & IRISH GOVERNMENT

Abuse of process is the only term to describe the treatment of Ivor Bell, who is the only individual charged following the receipt by the PSNI of Boston College materials. Mr. Bell has vigorously protested his innocence of any charges, and his case has not progressed past the preliminary inquiry stage after years of hearings.

Abuse of process is the only term to describe this latest move against Dr. McIntyre by the DPP and Obama’s DoJ. We therefore call on the Irish government not to co-operate with the British authorities should any effort be made to extradite Dr. McIntyre from his home in Drogheda to Belfast for the purposes of yet another futile and inordinately expensive “show trial.” We have sent a copy of this statement to the outgoing Taoiseach, Mr Enda Kenny and to the Fianna Fail leader, Micheal Martin TD.

We also call upon all decent-minded people in the US, politicians, lawyers, civil libertarians and members of the public to protest this disgraceful action by the Department of Justice. We call upon progressive candidates seeking nomination for the US Presidency to make their views clear on this matter.

ACADEMIC FREEDOM UNDER SIEGE

This subpoena differs from all previous requests which were directed at the subjects of academic research. This subpoena is directed at an academic researcher, solely on the grounds that he attempted to record an alternative version of history. The implications for the rest of American academe are incontestable. What was it Pastor Niemoller said?

‘First they came for the Socialists and I did not speak out because I was not a Socialist…..Then they came for me—and there was no one left to speak for me.’

Accordingly we appeal firstly to the Trustees of Boston College to support any legal effort to resist this subpoena. This is a matter which could adversely affect everyone teaching on Boston College’s campus. We would like to extend that appeal to the rest of American academe and ask the researchers and teachers of Higher Education in America to recognise the seriousness of this threat to researchers everywhere by making your opposition to this subpoena loud and clear.

This is a matter which directly affects academic freedom in America. This is not a time for silence or acquiescence.

Ed Moloney, former director Belfast Project
Wilson McArthur, lead UVF researcher for the Belfast Project

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