Scappaticci – balancing prejudice to criminal investigations against prejudice arising from delay caused by a stay to civil proceedings .
07 October 2021
As a general rule criminal investigations and proceedings will take priority over coroner’s inquests, regulatory proceedings and/or civil proceedings arising out of the same facts.
The position becomes more complicated where
(i) the events being considered date back to the 1980s and 1990s and concern allegations in respect of an alleged government agent in the IRA, Freddie Scappaticci, said to be known as Stakeknife,
(ii) numerous criminal investigations, both into the alleged underlying offences and the investigation of those offences, have started and concluded,
(iii) in some cases criminal convictions were overturned by the Court of Appeal over 10 years ago,
(iv) some of the civil claims were commenced over 10 years ago, and
(v) a wide ranging new criminal investigation (Operation Kenova) commenced in 2016 and any criminal trials that may arise from Kenova are unlikely to conclude for a number of years.
On 23rd September 2021 Mr Justice Horner handed down the long-awaited judgment as to whether the numerous civil claims concerning Mr Scappaticci could proceed or whether there would be further significant delay through them being stayed whist Opertaion Kenova continued. Horner J rejected a stay. The full judgment as well as a summary are available.
In considering the application for a stay Horner J set out in some detail the background and competing arguments before turning to the legal principles. In considering the legal principles he considered the ‘overriding objective’, Article 6 of the European Convention on Human Rights and the European and domestic case law on delay and disclosure. He further took into account that these were civil proceedings where applications had been or would be made for closed material procedures pursuant to section 6 of the Justice and Security Act 2013.
He noted the proposals in the recent government Command Paper ‘Addressing the Legacy of Northern Ireland’s Past’ but perhaps unsurprisingly stated it would be wrong to take into account potential legislation not as yet drafted.
In reaching his conclusion he accepted that there was no ‘detriment free route open to the court’  and importantly set out that a ‘do nothing approach’ was not consistent with the ‘overriding objective’ .
Having taken all matters into account the application for a stay was rejected on the basis of the prejudice it would cause to the civil proceedings but only because the prejudice to the criminal investigations could be limited through the use of the closed material procedure and withing that ring-fencing of what material should be disclosed.
The judgment does not allow for the civil proceedings to continue unfettered but does allow progress to be made in those proceedings whilst the criminal investigations continue. At the end of the judgment  Horner J set out general directions as to how the proceedings should proceed.
Martin Goudie QC is one of the Special Advocates appointed in the civil proceedings.