Jon Boutcher, in his preliminary analysis of Operation Kenova, provides a comprehensive evaluation of the pivotal question: What is the balance in public interest when undercover agents partake in illegal activities?
According to the PSNI Chief Constable, the employment of dual agents is a valid aspect of maintaining law, order, and national security. However, this tactic should never overshadow its ultimate purpose – the protection of democracy, legal order, and human rights. Those who manage these undercover operatives need to always bear this principle in mind to avoid causing more harm than good.
Boutcher’s report highlights that the British military overstepped this boundary on multiple occasions in their management of Stakeknife, identified as Freddie Scappaticci – the IRA’s chief of internal security. This overstep occurred through the concealment or suppression of information that, if revealed, could have stopped crimes from being committed, including abductions and murders, to maintain his cover.
Numerous factors allowed this to occur, including a lack of proper rules for agent handlers. Instead, they operated based on outdated Cold War guidelines that weren’t updated until the turn of the century.
As an experienced law enforcement officer, Boutcher has a greater understanding than most of the pressure that Stakeknife’s handlers would have faced. He concedes that mistakes and dubious choices were unavoidable and justifiable. However, significantly, this understanding does not exempt them from the repercussions of poor decisions.
Accountability for those who controlled Scappaticci has been challenging. No individuals from the 28 files sent by Kenova to the Public Prosecution Service in the North will be prosecuted. Ten of those files concerned Scappaticci, who passed away the previous year. The remaining cases were dismissed due to a lack of sufficient evidence for a conviction, according to the PPS’s perspective.
Boutcher underscores the steadfast doctrine, frequently referred to as ‘neither confirm nor deny’ (NCND), that governs British intelligence operations, stating it significantly hinders their accountability. The unwavering commitment of the British government to shield its intelligence and security agencies, under the veil of national security, is a substantial hurdle in reconciling with the aftermath of the Trouble and in dealing with its longstanding influence. This commitment saw the most recent endeavour – the Northern Ireland Troubles (Legacy and Reconciliation) Act – judged to be in violation of human rights law. While Kenova will not conclusively close the chapter on the Stakeknife case, it aims to promote some level of solace to affected families and survivors, which is one of the inquiry’s objectives.