Discovery – the new word for cover-up

By Senior Advocacy Director Mike Ritchie

In the appeal court yesterday, the PSNI once again rehearsed their claim that managing documentation is too great a burden and is eating up resources they don’t have. The Chief Constable was appealing against an order by High Court Judge Coulter to hand over documents to John Flynn and his legal team. The purpose of this discovery is so that the extent of the damages the PSNI have to pay can be agreed. The PSNI have already accepted they are liable for the actions of an informant in the UVF, Mark Haddock, who twice tried to kill John Flynn. The PSNI – through Mr Hanna – say that, as they have already accepted liability, further examination of documentation is unnecessary. In reply, John Flynn’s legal team say the police have been prevaricating all through this case, denying everything, stringing everyone along, including the courts, and progress only comes when they are forced by the courts to do something. Unless the documents are produced, the extent of the impact of police wrongdoing cannot be assessed.

The hearing was in front of Lords Justice Gillen and Weir and Mrs Justice Keegan.

They did not appear to be very supportive of the Chief Constable’s arguments. Questioning Mr Hanna’s assertions, it was suggested material properly relevant should be disclosed and Mr Flynn is entitled to read between the lines; wrongdoing between agents and their handlers is seldom written down in black and white after all. That is why it can’t be up to the police to decide what is relevant, the applicant must be able to look at a wide range of documentation including all notes of all meetings between Mark Haddock and his handlers to see whether he was encouraged in his criminal activity. It can’t just be in relation to Mr Flynn; handlers’ behaviour and attitudes beforehand may have been contributory to Haddock’s subsequent misfeasance, including the attacks on Mr Flynn. Alternatively, more appropriate handling of Haddock may have prevented the attempted murders. Surely, the judges suggested, a systemic failing by the handlers would be relevant to the question of costs in this case.

Mr Hanna defended an estimate that the amount of work in identifying and redacting the documentation would cost £169,000. In response to the claim that the material prepared for the Ombudsman investigation into the Mount Vernon UVF had been shredded and the officer involved had now retired, the judges asked whether the Ombudsman had been asked whether they still had the documentation. Mr Hanna had to confess this had not happened. He seemed to imply this was the first time anyone had thought of this. But Mr Fee, on behalf of John Flynn, pointed out that Mr Justice Counter had made the same point at an earlier hearing.

It seemed, the judges suggested, that the PSNI approach was: “I can’t be bothered to do this. It’s too much hassle.”

Mr Fee laid out the history of the police approach to the management of the informant, the ombudsman’s investigation into the Mount Vernon UVF (known as Operation Ballast), the subsequent trial of Mark Haddock and this civil case. Throughout there has been destruction of documents, tampering with and destruction of evidence, sham interviews, protection of the informant during a very serious career of criminality, lack of clarity during trial, denial of liability, resistance to legitimate questions and, now that liability has been accepted, ultimately excuses in the face of orders for discovery. The PSNI’s legal team have not been able to come up with a single example of where a court sets damages simply on the say so of the defendant. He pointed out that Mr Flynn has already compromised – in front of Coulter J. who has already reviewed the extent of disclosure requested and assessed the question of relevance – on the extent of discovery sought.

For Mr Flynn, there should be no further delays and resistance. All that has been asked for should be produced. Judgement is reserved.

All in all, this was yet another example of the latest tactical ploys developed by the PSNI and their lawyers to resist looking under the rocks hiding the rotten links between the RUC/PSNI and loyalism. They prevaricate and obfuscate and bleat about resources and how much effort is required; anything but just getting on with letting the light shine on what they were up to. In this brave new world of alternative facts, discovery is the new word for cover-up.