The “legal battlefield” around legacy has led to a different approach being taken to prosecuting historical cases in Northern Ireland, Jon Boutcher has told MPs.
Explaining the lack of prosecutions arising from the Kenova interim report, the PSNI Chief Constable suggested prosecutors were “worn down” by the continual challenges to their decisions.
Mr Boutcher said that if a similar approach to evidence had been taken when he worked in England, there would not have been prosecutions in a number of his high-profile investigations.
Kenova was a major investigation into the operation of the British Army’s top agent inside the IRA, headed up by Mr Boutcher before he left to take up the PSNI role last year.
Its interim findings found that more lives were probably lost than saved by the actions of Stakeknife, widely believed to be west Belfast man Freddie Scappaticci, who was 77 when he died.
The probe, which was undertaken by Bedfordshire Police and ran for seven years at a cost of approximately £40 million, examined the role of the Army’s prized agent embedded in the heart of the IRA’s Internal Security Unit (ISU).
Some 32 people, including former police, ex-military personnel and people linked with the IRA, were considered for prosecution on a range of charges from murder and abduction to misconduct in public office and perjury as a result of the Kenova investigation.
However, the Public Prosecution Service (PPS) in Northern Ireland found there was insufficient evidence to pursue any cases.
Mr Scappaticci died before any decision was made on the evidence files related to him.
During a meeting of the Northern Ireland Affairs Committee, SDLP MP Claire Hanna said the lack of any prosecutions had “tested the confidence” of many people in the PPS.
Mr Boutcher said: “I have dealt with some really, really complicated cases in the past involving international terrorism, organised crime.
“If the same approach had been applied that the PPS have applied to legacy cases, to those cases, many of which are very well documented as stated cases for prosecutions, my previous history of successfully prosecuting those cases wouldn’t be that history, they wouldn’t be prosecuted.
“I am very clear on that.
“The mechanism they adopted to look at these (Kenova) cases built in considerable delay and it did not build in the level of relationship and communication between the independent investigative team and the independent prosecution authority and the independent counsel appointed to look at the evidence.”
He added: “Whenever you have got a case that is from some time ago there is inevitably going to be a challenge in showing the continuity of certain evidence, because people have passed away or there has been a break in the chain of the integrity of exhibits.
“I had a meeting with the PPS and we had independent counsel from London who was very clear, the commentary he used was ‘Every day of the week at the Old Bailey I would get that hearsay evidence sent’.
“And there was a different view from the Public Prosecution Service in Northern Ireland.
“Now, for whatever we might say about the same legal processes being in place, Northern Ireland has a different way of approaching some of that evidence because legacy has become so challenging.
“Every case faces either a judicial review or an appeal.
“In a way I think the imagination, the energy that I have engaged with with prosecution authorities around complicated cases, Al Qaeda or organised crime gangs, is absent on legacy because they are worn down by this legal battlefield that exists around if they make one decision or another.
“We didn’t get, I don’t think, to discuss and engage with each other about the details of that evidence in the way that I would have expected and hoped that we would.”
Sir Iain Livingstone, who replaced Mr Boutcher as head of Operation Kenova, told MPs that prosecutors tended to become involved in cases earlier in the rest of the UK.
Mr Boutcher contrasted the approach taken in legacy cases with that following the shooting of senior PSNI detective John Caldwell last year.
He said: “If I look at the way that the investigation and prosecution relationship was with the attempted murder of John Caldwell last February, having arrived as the Chief Constable, that was more akin to the relationship that Iain has described that we would expect to see.
“I think because of resources and because of their (PPS) capacity they can’t apply that standard, that level of responsiveness, for legacy cases.
“Probably based on the fact that, by and large and certainly in the cases we were dealing with, there was no obvious threat from the people we suspected of committing these crimes.
“They didn’t need to deal with them in the same timely fashion they had to deal with other files they were looking at.
“Because of the bandwidth of the PPS they simply weren’t able to adopt that process.”
