Letters Blogatory

The Blog of International Judicial Assistance
By Ted Folkman

Belfast Project: Rea Challenge Fails

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My commute today. Credit: Star Wars.com
The Belfast Telegraph is reporting that Winston “Winkie” Rae’s challenge to the PSNI’s effort to obtain his Belfast Project interviews has failed. I reported on Rae’s case late last month.

The Telegraph article makes a few points clear that previously were unclear. I had thought that Rae had obtained an injunction from the Belfast court by persuading it that he had a likelihood of success on the merits (or whatever the equivalent British concept is for obtaining preliminary injunctive relief). It turns out that the government has consented to the injunction while Rae’s claim proceeded. Another article in the same paper also gives our first look at government’s reasons for seeking Rae’s tapes. Here is what Rae, apparently quoting from the governement’s briefs, had to say:

“They list that I met John Major in 1996 during the Good Friday Agreement negotiations which infers that I must be a senior member of an illegal organisation.

“That I was the bodyguard of my late father-in-law Gusty Spence, that I was responsible for a spate of robberies of debt collectors in north Down.

“They also refer to two murders and an attempted murder which I totally refute as well as the other allegations. Three allegations of directing terrorism … and three allegations of membership.”

Rea added that a newspaper interview he have about the Boston College project was used to claim he had inferred that he wanted his tapes back because there was something in them.

The judge gave strong views on the merits of Rae’s case:

Mr Justice Treacy threw out his challenge after holding that the test for seeking the material had been met.

He said it was “manifest” from the terms of the request that a police investigation was underway.

“The request was plainly lawful,” the judge said.

“There is no credible contention that the applicant’s rights (under the European Convention on Human Rights) are infringed.”

Meanwhile, Ed Moloney has opined that “the move against Winston Rea was nothing more than a cynical attempt to balance the pursuit of Republican interviews allegedly concerning the disappearing of Jean McConville with some Loyalist interviews.” I suppose that could be right, though it will be small consolation to Rae if, in fact, his interview is incriminating.

Ted Folkman
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8 responses to “Belfast Project: Rea Challenge Fails”

  1. MAM

    Good Morning Ted,

    I appreciate your continued objectivity in keeping us informed on this issue. As always, with any new developments in this case there seems to be more questions than answers. Mainly I wonder if Mr. Rea could seek a judicial review here in the US or is this the end of it and his tapes will now be released to the PSNI/PPS?

    Reply
    1. Ted Folkman

      MAM, thanks for the comment! I think the answer is: “it depends.” If the PSNI has already picked up the tapes, then any challenge in the
      United States would be moot. If not, I suppose Rae could seek to enjoin the Department of Justice from turning them over, but the chances of success would be very low in light of the outcome of the main case.

      I suppose that if the tapes are now in the possession of someone in Washington rather than someone in Boston, Rae could seek relief in the District of Columbia and hope that the court there gives a different answer than did the court in Boston. Massachusetts and the District of Columbia are in different judicial circuits, so the First Circuit’s decision does not formally bind the DC court (though of course it is persuasive as a precedent).

      Reply
  2. Chris Bray

    See also this BBC story for a hint about what the PSNI wants from the tapes:

    A barrister representing the chief constable…contended that if crimes had been committed, police have a statutory obligation to investigate.

    “There are obvious reasonable grounds for suspecting offences have been committed,” he said.

    “Whether or not the applicant is the individual who has committed those, it’s quite clear the police have active lines of inquiry in respect of murder, attempted murder and robbery.”

    He said the PSNI is seeking to advance inquiries into serious crime spanning three decades up to the late 1990s.

    “Regardless of who committed these offences there are victims, there are those bereaved, and some of them have written to the court expressing an interest in the issue,” he added.

    —

    So the PSNI is obtaining Winston Rea’s interview material in order to investigate murders and robberies not committed by Winston Rea. “Whether or not the applicant is the individual who has committed those.” “Regardless of who committed these offences.”

    I can’t imagine a way to not see this as a cheap and shoddy fishing expedition.

    Reply
    1. Ted Folkman

      Why? In an ordinary criminal case grand juries hear testimony all the time from witnesses not themselves accused of crime. Or they subpoena documents from such third parties.

      Reply
      1. Chris Bray

        This is not an ordinary criminal case — they’re reaching back forty years into actions covered by the Belfast Agreement, and crimes that have a plainly political flavor. One of the accusations outlined to Rea, which you’ve quoted in your post above, is that he met with Prime Minister John Major to negotiate a peace in Northern Ireland, which proves that he had the standing to speak for an illegal paramilitary organization.

        So one of the foundations of their accusations is that he negotiated for peace. This is not a gas station robber — he’s a political leader. Using his interviews to get at other people is an attempt to open a door to political organizations, and a repudiation of the agreement that brought peace to Northern Ireland. There should be a higher standard, here, than for a routine criminal investigation.

        The PSNI and DOJ pursued interview materials regarding the murder of Jean McConville for four difficult years, and the result is that they’ve charged a tangential figure for aiding and abetting, with no charges brought against anyone purported to have actually kidnapped or killed Jean McConville. The police in NI are pulling at the foundations of the peace process to dredge up chickenshit. The proven outcomes of this investigative process aren’t worth the effort and the costs.

        Reply
        1. Ted Folkman

          Thanks, Chris. I think this gets us back to one of the themes of debate from the main case: the distinction, if there is one, between illegal subpoenas and stupid subpoenas.

          Reply
          1. Chris Bray

            Agreed!

            Reply
  3. Chris Bray

    An update: I’m told that the Court of Appeal in Belfast has granted an injunction to prevent the PSNI from taking possession of the tapes, pending its consideration of the case.

    Reply

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