Several news sites, including the UTV, are reporting that a judge of the Belfast High Court has rejected Anthony McIntyre’s application for judicial review of the UK authorities’ decision to seek the Belfast Project interview materials under the mutual legal assistance treaty between the United States and the United Kingdom. A written decision is not yet available, but it appears that the judge rejected McIntyre’s position both on the facts and on the law. One of the factual bases for McIntyre’s request for an injunction was the supposed risk of harm to him if the interviews are turned over to the PSNI. The judge found:
In light of the unequivocal response from the PSNI, supported by the threat assessment from the security authorities, I conclude that the applicant has failed to make out an arguable case that disclosure of the Boston College tapes would, as he claimed, materially increase the risk to his life or that of his family.
Following the approach taken by the Court of Appeals for the First Circuit here in Boston, the judge also rejected the premise of McIntyre’s legal argument, which depended on Article 2 of the European Convention on Human Rights:
“Investigating murder and gathering relevant material is not only a requirement of domestic law, but it is also a requirement of the positive duty which Article 2 imposes upon contracting States,” he said.
Rejecting Mr McIntyre’s application for judicial review, the judge added: “On the applicant’s case the PSNI is prohibited from receiving material no matter how probative—even a confession to murder if it exists—because of the risk from the IRA, dissident or otherwise.
“The very notion that a risk generated by the perpetrators or their associates could require the PSNI, or indeed the Court, to effectively suppress material potentially relevant to murder is fundamentally inconsistent with the very nature of the rule of law and Article 2 itself.”
I will try to figure out what the appellate options for McIntyre in Belfast are. But for now it seems that all that stands between the PSNI and the interviews is Justice Breyer’s stay.