Stakeknife: Why did Scotland’s Lord Advocate grant immunity from prosecution to a notorious IRA leader and British double agent?

One section of the Smithwick report reads: “Any witness before the Tribunal would have protection in this jurisdiction from criminal prosecution on the basis of evidence given before it.” So far, so unremarkable. An Irish inquiry is giving immunity in Ireland from prosecution to any witness who attends the tribunal – in order to get to the truth.

However, matters don’t rest there. The report continues: “Given the cross-border aspect of the Inquiry, it was equally important to securing the attendance of witnesses that such protection be extended to the United Kingdom.”

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It’s then said that the tribunal “sought and received an undertaking from the then Attorney General of England and Wales … to similar effect.” The Director of Public Prosecutions for Northern Ireland “confirmed that he would continue to honour … [the] undertaking.”

So here we have a blanket promise of immunity from prosecution to Tribunal witnesses from both the UK government and prosecutors in Northern Ireland.

However, matters turn specific when the Scottish Government becomes involved. The Smithwick report states: “The Tribunal subsequently, at the request of Freddie Scappaticci, sought and received a similar undertaking from the Lord Advocate, in relation to Scotland. This was given in terms specific to Mr Scappaticci, though the Lord Advocate also indicated that he would be happy to consider a similar request in respect of any other witness.”

It’s one thing for the Irish government to grant immunity in an Irish inquiry – quite another for prosecutors in Britain to grant immunity for offences committed in Britain. However, it’s the role of the Lord Advocate in relation to Scappaticci which is most remarkable.

In 2003, I named Freddie Scappaticci on the front page of The Herald as ‘Agent Stakeknife’, the highest placed spy inside the IRA working for the British army. Scappaticci was a committed republican who was turned by a branch of British military intelligence called the Force Research Unit (FRU).

A few years earlier I’d revealed that Brigadier Gordon Kerr, a high-ranking Scottish solider originally from Aberdeen, was the head of the FRU. Kerr’s FRU ran double agents inside the IRA and loyalist paramilitary gangs – the most infamous was Stakeknife.

Freddie Scappaticci

Members of the FRU told me that double agents working for the British security forces inside terror groups were allowed to continue operating as terrorists in order to keep their cover. That meant members of the IRA or UDA carried out acts of terror – including murder – with the knowledge of their ‘handlers’, the military intelligence officers who ran double agents. That’s why in November 2000, The Herald ran a front page story of mine based on the testimony of FRU soldiers headlined ‘My unit conspired in the murder of civilians’.

Agents were also sometimes used as proxies – with handlers passing them material and intelligence which aided them in setting up assassinations seen as useful to British interests. As a result, British security forces colluded with terrorists in murder – that is the bottom line allegation at the centre of all Dirty War investigations. Dozens of murders are thought to be connected, many involving innocent civilians not linked to terrorism.

Stakeknife was at the heart of IRA operations throughout his time as a British double agent. He helped run the IRA’s Internal Security Unit – known as the ‘Nutting Squad’ because of its method of executing traitors with a bullet to the head.

British police set up Operation Kenova to investigate the activities of Agent Stakeknife, and allegations of kidnap, torture and murder relating to more than 50 individuals. Scappaticci was arrested in 2018 and later released on police bail.

A decision was later taken by the Public Prosecution Service in Northern Ireland not to charge Scappaticci – who’s always vehemently denied that he’s Stakeknife – in relation to a perjury charge.

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Operation Kenova still plans to submit findings on dozens of other alleged offences, including murder and abduction, by the end of this year. Scappaticci is also facing civil lawsuits.

Given all this turbulent and bloody history of allegation and counter-allegation, why did Scotland’s Lord Advocate chose to get involved in the Stakeknife case? Given that so much of the reporting on Stakeknife has come from The Herald, and given that a senior Scottish army officer is right at the heart of the Dirty War, it’s troubling to say the least.

I contacted the office of the Lord Advocate to ask why Scappaticci was granted protection from criminal prosecution in Scotland, what oversight was given to the decision, what discussions were held with other government agencies in Scotland and the UK, why this matter was an issue for Scottish law officers, and why the Lord Advocate was “happy” to consider similar requests for immunity from other witnesses.

I was told that “the undertaking was communicated to Judge Smithwick by letter on 29 February 2012”. The Lord Advocate at the time was Frank Mulholland QC.

The Crown Office said: “The Lord Advocate undertook that evidence given at the tribunal would not be used in a Scottish prosecution. This allowed the witness to provide a full account to the tribunal and was consistent with the position adopted by other UK prosecutors. The possibility of prosecution using other evidence would still be open to Scottish prosecutors. Decisions on the prosecution of crime in Scotland are taken by the Lord Advocate, acting independently of any other person.”

The Crown Office added: “In the undertaking we also reserved the right to prosecute if the witness gave false evidence or encouraged others to do so.”