Jamie Bryson on the ever increasing assault by the PSNI on freedom of inquiry.
It is reported that the PPS are to prosecute for the alleged offence of conspiracy to commit misconduct in public office in relation to my appearance before the NI Assembly Finance committee in 2015.
I understand at least one senior QC returned the papers, unwilling to play any role in such a case. It appears the PPS have hawked the case around senior counsel until they found a legal opinion that would allow them to proceed with this flagrant assault on public interest journalism. It is designed as a ‘warning’ to anyone that dares expose political corruption. Perhaps some industrious journalist could ask the PPS how many QCs they went to over two-and-a -half years before they found one willing to indulge their assault on press freedom.
Conspiracy to commit misconduct in public office is a charge that was originally deployed following the Leveson inquiry and Operation Elveden, a police investigation into the payment of corrupt officials by journalists.
It allows prosecuting authorities to capture journalists within the sphere of misconduct in public office; despite the fact journalists are not themselves public office holders. It has been criticised by advocates of press freedom and required guidance to be issued by the CPS and Attorney General in England.
And so we come to the crux of this alleged case - the Public Prosecution Service would have to prove, to a criminal standard, that the publication of my evidence at the Northern Ireland Assembly Finance Committee damaged the public interest. I have been clear that I stand over the validity of all evidence provided; indeed much of it has been independently vindicated. Therefore it is my position that exposing political corruption is clearly in the public interest, regardless of how that information comes into the public domain.
We therefore reach the core point, how could the Public Prosecution Service prove damage to the public interest, unless they disprove the validity of my evidence. I look forward to Mr Robinson, Mr Cushnahan and all the other persons named in my evidence being summoned to the Crown Court to face cross examination, under oath, as to their role in Nama.
I am also aware that PSNI and the NCA are in possession of the Gareth Graham tapes and the John Miskelly tapes: this is all relevant disclosure given that one of the necessary elements of the offence is that the publication of the information caused public harm. And so, given the evidence contained on those tapes demonstrates the validity of my allegations, they are clearly relevant. If my disclosures were exposing corruption in the public interest, then it is impossible they could cause public harm.
A methodical examination of my evidence to the committee - much of which I had already published on my blog prior to the hearing and repeated in my book The Three Headed Dog - would demonstrate that the vast majority of information has since been independently verified, and other elements remain under active investigation by the National Crime Agency, for whom I have been classed as a witness, despite the fact I am unable to provide further information than that which is in the public domain, given that I have a moral duty to protect my sources.
The criminal complainant leading to this decision to launch a political show trial was initiated by Maurice Morrow of the DUP who claimed that my evidence had damaged the reputation of the DUP and so in turn damaged the institutions. It would be quite the achievement to damage the reputation of Mr Morrow’s wing of the DUP, especially given the recent RHI inquiry.
It is rather bizarre that on one hand the DUP argue that my appearance before the Nama inquiry caused grave public harm, yet no DUP MP voted against me being brought to Westminster to give public evidence to the Northern Ireland Affairs Committee.
This is however an extraordinarily dangerous precedent; here we have a section of a political party claiming their reputation has been damaged, and the PSNI and Public Prosecution Service treating this as the public harm element of an offence of misconduct in public office. If exposing corruption, which therefore damages the reputation of the political party alleged to be corrupt, is to be criminalised then we are truly living in an Orwellian state.
As for damaging the institutions, these are the institutions that are so flawed and so unstable that they haven’t sat in over two years. In a hypothetical situation any suggestion that I would have damaged the immoral structures of the Belfast Agreement is actually a rather pleasant compliment.
There is of course another key point. The PSNI originally treated me as a witness in this investigation, but when I refused to co-operate and hand over journalistic material they adjusted my status - without any further evidence - to a suspect, whilst accepting in writing and on interview tape that I was a journalist. What was the basis of this? It sends the message that if journalists refuse to hand over their journalistic material then they will be criminalised.
If we follow the logic of that then this opens the door to the blanket criminalisation of public interest journalism. It transfers political wrongs into criminal wrongs and this prosecution is of unique significance given it is to be the first of its kind per se in Northern Ireland, and the first of its kind in the UK that doesn’t involve payment to public officials in return for information.
If this is the new PPS charging standard then the leaking of documents by John Robinson with the approval of Simon Hamilton during RHI would also fall within this standard. Their actions may certainly have been a breach of trust and fall within the ambit of ‘dirty tricks’, but are we now going to prosecute political dirty tricks?
To use a recent example; this charge could have been used against Trevor Birney and Barry McCaffrey, or indeed any other journalist or legal professional, if it could be shown they knew that a public office holder was committing misconduct by leaking documents.
It means that any journalist that receives information from a public office holder, and if the leaking of information or the conduct of the official is a prima-facie case of misconduct in public office, then the journalist can be charged with conspiracy. This is an extraordinary situation.
In relation to the Nama inquiry, there were politicians from all parties in touch with me. I would go to jail before ever betraying the confidence of any of these people. However, there are other skeletons in the Nama closet. For example, a senior DUP Minister was ‘coaching’ an MLA from another party on the DFP committee as to how they could go about blocking me being invited to give evidence. This is especially serious given this DUP Minister was himself implicated in Nama and was, with the full knowledge of an MLA from another party, seeking to frustrate the inquiry.
Indeed it is also my understanding that aspects of the Jonathan Bell tapes relate to discussions around how to cover up Nama, what questions DUP members of the committee should ask Mr Robinson and Mr Wilson during his evidence and DUP links with MLAs in other parties who were on the DFP committee. The Bell tapes would therefore be relevant evidence for any political show trial, and that could prove very embarrassing for the DUP indeed, given I understand that the content goes far beyond RHI and strays into Nama. Of course if the court were to issue an order compelling the disclosure of the relevant tapes then they would have to be turned over in their entirety - to me.
There has been a false narrative perpetuated from 2016 that I was somehow ‘conspiring’ with Sinn Fein. This is patently and demonstrably false. Even within the PPS statement it is clear that the allegation is around the “alleged manipulation of the presentation of evidence”, there never was any allegation that I was ‘fed’ information by Sinn Fein and those who promoted this false narrative should apologise.
It is promoted, ironically in the majority of cases by pro-agreement voices who advocate Government with Sinn Fein, in an effort to smear me and undermine my anti-agreement stance.
To those people I would point out that I campaign against Sinn Fein every day of my life, I oppose the Belfast Agreement and the ‘peace process’ narrative that allows nationalism to use the structures of the agreement to advance their harmonisation agenda under the guise of equality and rights.
Neither Daithi McKay (nor any other member of Sinn Fein) provided me with any information in relation to Nama. Even a quick scan over what are alleged to be transcripts (I have no idea as to the accuracy of said transcripts) demolishes the false and politically contrived narrative that they did. The actual allegation was that there was guidance on how to present the evidence in a manner that would fit within the procedures of the committee- if this was true, and no concession is made on this point, then surely the public interest was best served by ensuring that corruption by public officials was exposed?
Indeed some would say that Sinn Fein were played like a fiddle and ultimately ended up as damaged as sections of the DUP by Nama, at a time when the structures of Stormont were blossoming under a DUP-Sinn Fein partnership. The ‘McKay scandal’ was the first rupture in that marriage of political convenience.
That scandal stems from public extracts of alleged messages. It would be for the prosecution to prove those are (a) real and (b) reach a credible evidential standard. As aforementioned however, there is no suggestion in any of these alleged messages that I was provided any Nama information by Sinn Fein.
In his book on Nama, best-selling author and journalist Frank Connolly claims that my sources included ‘powerful elements’ within the DUP. At no stage whatsoever is it ever suggested that Sinn Fein provided me any information on Nama. If indeed Mr Connolly’s analysis is correct then we would have the incredible situation whereby I was being prosecuted for disclosing public interest evidence allegedly provided to me by senior members of the DUP, on the basis of a complaint by a section of the DUP that the disclosures caused public harm by virtue of damaging their reputation corporately as a party.
There are no skeletons in my closet in relation to Nama. The allegations relating to alleged contact with a committee chairman have been well rehearsed and subjected to intense public scrutiny.
I would welcome an adversarial criminal trial to copper-fasten the facts around those allegations, none of which would be new to the public domain. It is other people who should be worried, because a trial of this sort would not only seek to criminalise public interest journalism, but would open a political Pandora's box and the ultimate losers in that will be sections of the DUP and Sinn Fein, right at the moment they are seeking to put the institutions back together.
The Maurice Morrow wing of the DUP - which is the RHI part of the party - sowed the wind with their attempt to criminalise public interest journalism relating to the exposure of Nama corruption: they could very well end up reaping the whirlwind.
Will the NUJ back me as they have backed others? It matters little to me if they do, or do not. However, the principle at stake will affect all journalists, writers, authors and whistle-blowers.
The evidence I provided was accurate and true and I do not recant from a single word of it. My evidence to the committee and blogging before and after the event, along with my book, was public interest journalism that helped blow the lid on serious political corruption. I will never apologise for that or back down in the face of an onslaught orchestrated by millionaire property developers, their business partner lawyers or indeed political allies of this golden circle. That they have managed to persuade the state to aide them in this campaign is all the more reason why they must be resisted.
If they want a war, they can have one.
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