Statement from Director of Public Prosecutions Stephen Herron in respect of the Operation Kenova Interim Report into the activities of an agent known as Stakeknife

I acknowledge the content of Operation Kenova’s Interim Report and hope it provides a wider level of information for victims and families who have been seeking answers for many years. Today should rightly be about recognising the continued trauma of victims and families and identifying what can be learned to help them and society in moving forward.

The role of the Public Prosecution Service (PPS) is to independently and impartially take decisions as to prosecution. It does this by applying the Test for Prosecution which can only be met if the available evidence provides a reasonable prospect of conviction. All of the decisions that we have taken in relation to the files submitted by Operation Kenova have been explained in detail to the victims and families concerned. They have also been the subject of four separate public statements which contain significant levels of detail as to the available evidence in each individual case and which are published in full on the PPS website. 

I recognise the significant public interest in the prosecutorial outcomes arising from Operation Kenova and it was in the interests of public confidence that we sought to be as transparent as possible in our decision making.

Today’s report and commentary referenced the strength of the evidence in relation to a suspect who died before decisions were taken. Consideration of all files received from Kenova in relation to this individual was at an advanced stage at the time of their death. There were significant evidential challenges, including issues of admissibility similar to those described in our public explanations of the decisions in other cases. However, the Test for Prosecution is not applied to individuals who are deceased and we cannot therefore confirm whether prosecutions would have been brought.

I note the sections in the report in relation to the PPS and further comments made today. I have previously stated that the PPS has not been funded adequately to progress legacy casework. The reality is that the PPS did not have sufficient resources to progress the Kenova decisions more quickly and that remains the position in relation to legacy cases more generally. However, skilled and experienced prosecutors and counsel were identified in advance of initial submissions to work on the Kenova files and the prosecutors directly involved dedicated the majority of their time, since 2020, to working on these cases. They also held multiple conferences with the Kenova team and issued advice and directions which resulted in the receipt of additional materials and reports. As is acknowledged within the Report, any delay in decision-making was related to inadequate resources. I hope that the funding requirements of all parts of the justice system are recognised in future discussions about potential prosecutions in legacy cases and the need to progress these more quickly.

There is commentary in the Report in relation to how the PPS works in complex legacy cases, not all of which I accept. Early engagement and advice to investigators is a common feature of the service that the PPS provides. The nature of the Kenova investigation involved an extensive review of a vast amount of material, including historical intelligence records with significant admissibility challenges. This was different to current day serious crime investigations and the scope for joint case building was consequently more limited. No alternative approach to investigator and prosecutor engagement in this case could have overcome the significant evidential challenges that led to the no prosecution decisions that have issued.

In respect of recommendation 8 within the Report and the application of the Public Interest Test for Prosecution, it is the position that the PPS Code for Prosecutors already expressly states that prosecutors are required to take into account the view of victims and, in appropriate cases, family members in deciding the public interest test. All of the decisions in Operation Kenova were taken on the basis that there was insufficient evidence to provide a reasonable prospect of conviction. The Public Interest Test did not require to be applied.

I agree that there is undoubtedly a need for a dedicated legacy prosecution unit as part of future plans for dealing with Troubles related offending. I will therefore be working closely with the Independent Commission for Reconciliation and Information Recovery (ICRIR) to ensure that lessons learned from the experience of working with Operation Kenova inform the future working arrangements that are currently being put in place. The victim-centred approach of Kenova investigators has been of clear benefit to families, and this level of care should undoubtedly be a key feature of any future legacy arrangements.
 

ENDS
 

Notes to editors

1. The total number of files received by the PPS in relation to this specific Operation Kenova investigation is 28. Each file on which an outcome could be concluded resulted in a decision not to prosecute.
2. Decisions issued in four separate phases with each phase accompanied by a detailed public statement in recognition of the significant public interest in these matters. These public statements run to a total of 92 pages and set out the reasons for the decisions that were taken. 
3. Victims and families also received an individual written explanation and a number of victim meetings have taken place or are scheduled to take place.
4. The first phase of decisions involved one file containing four individuals in which decisions issued in October 2020. Please see the statement on the PPS website.
5. The PPS subsequently issued a formal ‘no decision’ outcome in relation to ten of the files as they contained just one suspect who died in 2023. The PPS position after the death of this suspect is available on the PPS website.
6. In December 2023, the PPS issued decisions on a further five files received. Please see a statement relating to these decisions on the PPS website.
7. On 6 February 2024, the PPS issued decisions on a further six files. Please see a statement relating to these decisions on the PPS website.
8. On 29th February 2024, the PPS issued decisions on the final six files. The public statement relating to these decisions can be found on the PPS website.
9. PPS decisions are taken in accordance with the Test for Prosecution, which involves two stages. The Test for Prosecution is met if, in relation to an identifiable suspect, the available evidence is sufficient to provide a reasonable prospect of a conviction (the Evidential Test) and if prosecution is in the public interest (the Public Interest Test). Further detail is contained in the Code for Prosecutors.
10. Further information on the establishment and work of Operation Kenova can be found on its website.
11. Media queries for the PPS should be referred to the Communications Unit by emailing ppspressoffice@ppsni.gov.uk inside office hours. The out of hours press officer can be contacted on 07920 271804 or 07795 480234.