1. INTRODUCTION

1.1 British Irish Rights Watch is an independent non-governmental organisation and registered charity that monitors the human rights dimension of the conflict and the peace process in Northern Ireland. Our services are available to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position on the eventual constitutional outcome of the peace process.

1.2 This submission to the United Nations’ Special Rapporteur on Freedom of Expression and Opinion concerns the use by the United Kingdom government of court injunctions to silence newspapers seeking to expose wrongdoing by a secret unit within British army intelligence known as the Force Research Unit.

1.3 British Irish Rights Watch (BIRW) has been seeking to exposebloc alleged serious crimes on the part of the Force Research Unit for some time now. In February 1999 BIRW delivered a confidential report to the British and Irish governments and to the United Nations Special Rapporteur on the Independence of Judges and Lawyers. The report alleged that the Force Research Unit (FRU) had targeted United Kingdom citizens for murder and colluded with loyalist paramilitaries. One of the most prominent of their victims was the Belfast lawyer Patrick Finucane, murdered on 12th February 1989. The Special Rapporteur on the Independence of Judges and Lawyers, Dato' Param Cumaraswamy, called for an Independent inquiry into this murder in 1998, and reiterated that call in his reports to the Commission on Human Rights in 1999 and 2000. A summary of the BIRW report about FRU is annexed to this report at Annex A.

1.4. Two newspapers, the Sunday Times and the Sunday People, have sought to publish the results of their investigative journalism concerning the activities of the FRU. Both of them have been served with injunctions intended to silence them and forcing them to submit to censorship by the Ministry of Defence.

2. THE INJUNCTION AGAINST THE SUNDAY TIMES

2.1 On 8th August 1999, journalist Liam Clarke wrote an article which was published in the Sunday Times alleging that MI5, the British Security Service, had a network of paid agents within the Irish police force, An Garda Síochána. The article was based on information supplied to him by a former FRU operative who was using the pseudonym Martin Ingram. On 13th August the Sunday Times undertook not to publish any further information obtained as a result of Martin Ingram’s service to the crown without the prior authority of the Ministry of Defence. On 18th August, the Ministry of Defence applied ex parte to the High Court in London for an injunction to prevent Martin Ingram from giving any further information to Liam Clarke or the Sunday Times.

2.2 On 21st November 1999, Liam Clarke published another, very detailed, article in the Sunday Times, again based on information supplied by Martin Ingram.

2.3 On 25th November 1999 in the High Court in London, the Secretary of State for Defence, Geoff Hoon MP, sought an ex parte injunction against Times Newspapers, to prevent them from publishing any more information obtained from Martin Ingram because the 21st November article had been published in breach of the undertaking given to the Ministry of Defence in August. Mr Justice Sullivan ordered that the Sunday Times could not publish the fact that it had been made the subject of an injunction, nor could it repeat any of the allegations it had already published. As soon as the Sunday Times was served with a copy of the injunction, it applied successfully to have those provisions discharged at a hearing the following day before the same judge. Both those hearings, and the subsequent hearing on 10 December, were held in private with the consequence that their content cannot be reported by the Sunday Times or any other newspaper.

2.4 At the beginning of July 2000, Detective Inspector Learner, who is heading a Metropolitan Police investigation into whether the person they suspect is Martin Ingram is in breach of the Official Secrets Act, informed Sunday Times journalist Liam Clarke that he wanted to interview him, and that if he did not attend voluntarily, he would be arrested. Liam Clarke opted to attend voluntarily, and was interviewed under police caution in the presence of his solicitor on 20th July 2000 at Musgrave Street RUC station in Belfast. Liam Clarke handed DI Learner a prepared statement, as follows:

“I am a journalist employed by Times Newspapers Limited. I am the author of the articles published in the Sunday Times dated 8 August and 21 November 1999 about which you have enquired. Based on my extensive experience as a reporter in Northern Ireland dealing with the troubles and on my contacts with police, army, government, civil service and political personnel I am satisfied that the material which was published under my name was not damaging within the meaning of the Official Secrets Act. In so far as my information came from one or more sources I am under the usual journalistic duty of confidence to those sources and therefore cannot discuss them. I believe that as a journalist I had a duty to disclose criminal or quasi criminal activity which may have caused injury or death to members of the security forces, persons assisting them or civilians.”

He did not add to this statement during the interview. He has been told that a file will be sent to the Crown Prosecution Service, who will decide whether or not he should be prosecuted. 3.

THE INJUNCTION AGAINST THE SUNDAY PEOPLE

3.1 On 17th September 2000 the Sunday People published coverage alleging that the FRU had been involved in targeting a retired republican, Francisco Nororantonio, for murder by loyalists in October 1987.

3.2 The Ministry of Defence immediately sought and were granted an ex parte injunction against the newspaper by Mr Justice Jackson, sitting in the High Court in London. 3.3 On 22nd September 2000 the Sunday People challenged the injunction, but were unsuccessful. They were banned from reporting the terms of the injunction or publishing what was said at the court hearing.

3.4 On 14th September they repeated their allegations and reported that they had been gagged. A further injunction was issued against them and again their attempts to challenge it did not succeed. The Ministry of Defence originally sought substantial damages against the newspaper, but dropped this demand at the door of the court. 3.5 On 1st October the newspaper again repeated its allegations. Further legal action against them is expected.

4. CONCLUSION

4.1 It is ironic that this submission is made on 2nd October 2000, the day that the Human Rights Act 1998 comes into force, bringing into English law the European Convention on Human Rights. It would appear that when it comes to freedom of expression, the government’s dedication to human rights is not worth the paper on which it is written.

4.2 In our opinion, it is time the government stopped trying to shoot the messenger. These newspapers are raising matters of serious public interest. They are trying to expose wrongdoing by government agents which led to the loss of life. In attempting to silence them, the government is colluding in illegal acts and is allowing its agents to act with impunity in contravention of domestic and international laws. Such behaviour on the part of a government would not be tolerable anywhere in the world, least of all in a developed democracy.

4.3 The Special Rapporteur is respectfully requested to transmit this submission to the United Kingdom government and to raise these issues in his next report to the Commission on Human Rights.

ANNEX A

DEADLY INTELLIGENCE

STATE INVOLVEMENT IN LOYALIST MURDER IN NORTHERN IRELAND: FEB 1999

On 12th February 1999, the tenth anniversary of the murder of Belfast solicitor Patrick Finucane, British Irish Rights Watch will deliver a confidential report to the British and Irish governments and to the United Nations’ Special Rapporteur on the Independence of Judges and Lawyers. The report concerns the activities of British military intelligence and its agent Brian Nelson. It is based on years of research by British Irish Rights Watch and others. Much of the information it contains is in the public domain, but some of it is not, and for that reason the report itself cannot be published. In summary, the report alleges that, through its secret Force Research Unit (FRU), a branch of army intelligence, the state sought out loyalist Brian Nelson and infiltrated him into the Ulster Defence Association, which carried out its campaign of murder under the flag of convenience of the Ulster Freedom Fighters (UFF). FRU used Nelson to enhance the loyalists’ intelligence on people it was targeting for murder, and that intelligence rapidly spread throughout other loyalist paramilitary groups. The report examines in depth the murders of three innocent victims of this deadly enterprise: Patrick Finucane, Terence McDaid, and Gerard Slane. The United Nations’ Special Rapporteur has called for an independent public inquiry into the murder of Patrick Finucane. The British government has refused to hold such an inquiry unless new evidence comes to light. The report reveals information that, if the data we have seen is authentic, constitutes shocking evidence that:

• members of the RUC suggested that the UDA kill Patrick Finucane
• the RUC sent a report to Douglas Hogg which prompted his remark in Parliament that some solicitors were “unduly sympathetic to the cause of the IRA”
• Nelson was actively involved in the murder
• FRU misled the Stevens Inquiry and the Crown Court about its knowledge of and involvement in the murder
• a “P” [personality] card used by Nelson to summarise information about potential UDA victims was withheld from the Stevens Inquiry into collusion and has been withheld from lawyers acting for Patrick Finucane’s widow
• RUC Special Branch had detailed information about the plot to murder Patrick Finucane but did nothing to prevent it or to protect him.

This is all information which, if true, would constitute new evidence. Terence McDaid was killed when he was mistaken for one of his brothers. The report suggests that it may have been wrong information from FRU’s handlers that led to his death. The Ministry of Defence have paid compensation to his family. Nelson kept his handlers informed about the UFF conspiracy to murder Gerard Slane, but the report indicates that FRU did nothing to protect him. The Ministry of Defence have also compensated his family. The alleged role played by FRU, and possibly by elements within the RUC, in these three murders and many others meant that UFF assassins were not brought to book. They literally got away with murder. The report also examines the significant role played by Nelson in procuring weapons from South Africa for three loyalist groups, the UFF, the Ulster Volunteer Force and Ulster Resistance. Both FRU and MI5 were fully aware of Nelson’s involvement. After the shipment of weapons was received, loyalists’ capacity for murder more than doubled. The report also discusses evidence that indicates that FRU misled the Stevens Inquiry. British Irish Rights Watch has examined documents which, if authentic, show that

• FRU impounded Nelson’s intelligence material within a week of the Stevens team’s arrival in Belfast
• FRU did not hand over these materials to Stevens until ten days after Nelson’s arrest three months later
• FRU did not hand over its own materials to Stevens for another six months or more
• the Stevens team found evidence that the materials had been tampered with
• not all the relevant documents were passed to Stevens.

FRU’s activities appear to have gone beyond isolated acts of collusion. Before the late 1980s, loyalist murders were often wholly sectarian and apparently random. After 1988 their capacity for murder increased dramatically and their targeting of victims became very much more precise. There seems very little doubt that FRU played a systematic role in this. If so, they broke every rule in the book and committed some very serious crimes. British Irish Rights Watch considers that all the deaths and other crimes in which FRU was allegedly involved merit proper scrutiny by a public inquiry. The organisation believes that the British government will be able to tell from the report whether the documents on which these allegations are based are genuine, because if so they have the originals in their possession. If they are authentic, then only a public inquiry can allay the matters of burning public interest that they raise. The materials on which the report is based strongly suggest that agents of the state have been involved, directly and indirectly, in the murder of its citizens, in contravention of domestic law and all international human rights standards. British Irish Rights Watch calls on the British government without further delay or prevarication to set up an independent public inquiry with full judicial powers to investigate the matters raised in the report. In particular, such an inquiry must:

• determine whether the activities of the Force Research Unit, especially their infiltration of Brian Nelson into the UDA, had as their aim the assassination of any individual
• make an informed assessment based on all the available evidence, whether currently in the public domain or not, of the damage caused by those activities, both in terms of lives lost and otherwise
• determine how much knowledge and oversight of those activities was had by the army, the intelligence service, the police, the Northern Ireland Office and the government.