Secretary of State Chris Heaton-Harris has been accused of “an unprecedented political intervention” as it emerged he has written to chief constable Jon Boutcher questioning his actions.
Dramatic details came to light during an inquest hearing liked to the LVF murder of Fergal McCusker (28) in Maghera, Co Derry, as he made his way home from a night out on January 18, 1998.
No-one has ever been charged with the Catholic man’s murder, although four men were arrested and later released.
Mr McCusker’s family believe there was collusion involved.
Former Director of Public Prosecutions, Barra McGrory KC, acting for the McCusker family, raised serious concerns after the Secretary of State recent intervention in the inquest, which opened last year.
During Tuesday’s hearing in Belfast, coroner Paddy McGurgan, heard how Mr Heaton-Harris referred to comments made by Mr Boutcher about a High Court case linked to another legacy inquest as “unwelcome”, while details of Mr Boutcher’s “robust” response were also revealed.
Mr McCusker’s callous killing came months after the LVF gunned down prominent GAA member Sean Brown in nearby Bellaghy in May 1997.
A coroner abandoned an inquest into the murder of Mr Brown last month and confirmed he was unable to complete the legal process due to PSNI and MI5 failures to disclose vital information.
He has since written to Secretary of State Chris Heaton-Harris requesting a public inquiry into the murder.
Before the collapse of the Brown inquest it emerged that more than 25 people had been linked by intelligence to the murder, including several state agents.
The court also heard that a suspect in the murder was believed to be a serving member of the Royal Irish Regiment while another suspect held a personal protection weapon and was regularly visited by a police officer at his home.
An RUC surveillance operation on key suspect Mark ‘Swinger’ Fulton was lifted the night before the killing and picked up again the following morning.
Mr McCusker family believe there are links with the Brown murder.
The latest intervention by Mr Heaton-Harris comes after he and Mr Boutcher launched a failed legal challenge last month to stop a coroner providing a gist, or summary, of intelligence about the killing of Paul ‘Topper’ Thompson in West Belfast in April 1994.
Lawyers for the Secretary of State and chief constable had claimed any summary of sensitive information breached the British government’s Neither Confirm Nor Deny (NCND) policy.
The challenge was later thrown out by a High Court judge and in a statement Mr Boutcher said he “accepts the judgment” and welcomed “the clarity that it provides”.
Legacy inquests are regularly the subject of applications by state bodies for redactions to sensitive documents under Public Interest Immunity (PII).
PII certificates are used by state agencies to withhold information they do not want members of the public to see.
It is understood coroner McGurgan is considering producing a gist in the McCusker case, but the Secretary of State is objecting.
Mr McGrory criticised the intervention by Mr Heaton-Harris.
“This is an unprecedented intervention by the British government in this inquest to curtail very important information being provided to the McCusker family,” he told the inquest.
“The McCusker family are very concerned that this development will derail their inquest and believe that this has been done deliberately.
“The material that has been furnished reveals what I would submit is an unprecedented political intervention on behalf of the government to seek to circumvent the judicial process in this inquest.
“And it seeks to do so by bringing as much pressure to bear as it possibly can on the court to avoid disclosure of any information or material which might embarrass the government.”
During the hearing, Mr McGrory revealed Mr Heaton-Harris wrote to the chief constable last month.
“The Secretary of State wrote on the 26th of March to the chief constable Jon Boutcher on this issue in which it said that the secretary of state ‘understood that consideration has been given to making disclosures by way of gists or otherwise in a number of Northern Ireland inquests in a way which would disclose information over which public interest immunity is asserted in PII certificates and which would involve departures from neither confirm nor deny policy’,” he said.
The Secretary of State also referred to Mr Boutcher’s comments in relation to the Thompson judgment.
“I note with concern your public statement issued on the 25th of March in respect of the on-going Thompson judicial review, the question of the legality of the revised gist proposed by you and agreed by the coroner has been stayed.
“‘Public comment on this matter without reference to me as Secretary of State is unwelcome’.”
Mr McGrory added: “But also in his letter the secretary of state said to the chief constable that he can confirm to him on behalf of the UK government that there has been no change in the policy of NCND and ‘furthermore I must set out my deep concerns shared across government that the developing trend in Northern Ireland towards departures from NCND’.”
“And that in my respectful submission is a political statement,” Mr McGrory said.
Mr McGrory also revealed details of the Mr Boutcher’s response to Mr Heaton Harris.
“The Chief Constable replied the following day in fairly robust terms and pointed out to the Secretary of State ‘I am independent of the executive and not subject to the direction or the control of government ministers, department or agencies’,” he said.
“‘Furthermore, I am under a duty to maintain this independence and I also have no intention of breaching this duty’.”
The former DPP added: “And he ended by saying in short, ‘I think it important that PSNI and her majesty’s government work closely together to ensure the protection of sensitive information and other national security interests, while simultaneously respecting each other’s separate constitutional responsibilities.”
Dr Tony McGleenan KC, acting for the NIO, said: “We have attended the inquest because the PII process is based on certificates….signed by the minister of state.
“He is responsible and accountable for whatever happens in respect of that process.
“So, there is nothing unorthodox about our attendance in that regard, it’s entirely proper that we are here and it is that context in which we have appeared before the court.
Dr McGleenan added: “We are limited in what we can say because of course the issues under consideration are properly closed but it is a matter that is properly in keeping with the constitutional function of the secretary of state…and that we attend in order to assist the court in reaching the right decisions and that’s the purpose of our involvement.”
Outside court, the McCusker family’s solicitor Pádraig Ó Muirigh, of Ó Muirigh Solicitors, said they are concerned by the development.
“This is an unprecedented intervention by the British government in this inquest to curtail very important information being provided to the McCusker family,” he said.
