Court proceedings in Northern Ireland have highlighted the activity of a man said to be an MI5 agent.
Lawyers for 10 people accused of involvement in dissident republican terrorism say the agent, Dennis McFadden, was central to the events that left their clients facing trial. But when the proceedings paused shortly before Christmas, MI5 was still refusing to confirm or deny that McFadden had been working for it.
The ten were arrested in August 2020 and charged with a variety of offences allegedly linked to "New IRA" terrorism. Nine of the accused - David Jordan, Sharon Jordan, Kevin Barry Murphy, Damien McLaughlin, Amanda McCabe, Gary Hayden, Joseph Barr, Shea Reynolds, Patrick McDaid - live in Northern Ireland and at the time of their arrest were members of Saoradh, a revolutionary political party that aims, according to its constitution, "to establish a 32 county Irish Socialist Republic based upon the constitutional principles of sovereignty, self-determination, public ownership, democracy, liberty, equality, and international fraternity."
The tenth person facing charges is Issam Bassalat, a Palestinian opthalmologist from Edinburgh.
The arrests were part of an investigation that in the first half of 2020 was given the codename Arbacia, having previously been known to PSNI officers by a different codename. Speaking at a press conference on 24 August 2020, Assistant Chief Constable Barbara Gray said Arbacia was "an ongoing and coordinated investigation into the activities of the New IRA and involves partners such as MI5, Police Scotland, An Garda Siochana and the Metropolitan Police Service."
one of the biggest terrorism trials in Northern Ireland since the "supergrass" cases
Media commentators predicted that the Arbacia trial will be one of the biggest terrorism trials in Northern Ireland since the "supergrass" cases of the 1980s.
The charges against the 10 defendants arise from covert audio and video recordings by MI5 of a series of meetings, the final one taking place at a rented house in rural County Tyrone in July 2020. Prosecutors say that the meeting was a New IRA meeting and was attended by all the defendants.
Dr Bassalat - the only one of the defendants to have provided a statement to police after his arrest - accepts that he attended the meeting, but says that he did so reluctantly at the insistence of Dennis McFadden, and in the belief that it was to be a public meeting organised by Saoradh. He says he attended solely in order to present his analysis of the situation in Palestine, as he had frequently done over many years at meetings held by organisations with a wide range of political views. His lawyers say that police transcripts of the MI5 recordings show that to be exactly what he did.
The IRA is proscribed under UK law and is held in law to include the New IRA for that purpose. Saoradh is not proscribed. British media regularly characterise Saoradh as the "political wing" of the New IRA.
Dr Bassalat's lawyer described Dennis McFadden as a "state agent" at a court hearing shortly after Dr Bassalat's arrest. This was widely reported in the media, along with reports of journalists' own investigations into McFadden's background. McFadden is reported to have disappeared from his home in Northern Ireland at around the time of the Arbacia arrests. His wife and young son have also disappeared. McFadden has neither been called as a witness nor named as a suspect.
Dr Bassalat's lawyers say that he was the target of attempted entrapment by McFadden and that in any case he committed no crime.
Committal proceedings against the 10 co-accused eventually began before District Judge Michael Ranaghan at Laganside Magistrates Court in Belfast on 24 October 2022. By this time three of the defendants - Paddy McDaid, Issam Bassalat and Joe Barr - had been granted bail, while the other seven remained in jail.
A committal hearing is a pre-trial hearing held to determine whether there is sufficient evidence to proceed to trial. It is usually based on written witness statements and documentary evidence served by the prosecution. When a committal hearing that is proceeding on this basis additionally involves witnesses being called to give oral evidence, the hearing is described as a "mixed committal." The proceedings against the ten Arbacia defendants fall into this category. Recent legislation in the Northern Ireland Assembly has abolished mixed committals for new cases brought forward on or after 17 October 2022, in order to save time and avoid the need for witnesses to give evidence twice, at committal and then again at trial.
If the case proceeds to trial, it will go to the Crown Court and will most likely be heard before a single judge sitting without a jury. In what amounts to a continuation of the system of Diplock courts that operated during the Troubles, the UK Parliament's Justice and Security (Northern Ireland) Act 2007 empowers the Director of Public Prosecutions for Northern Ireland to issue a certificate that a trial be conducted without a jury if he is satisfied that "there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury" and if he also "suspects" that any of a number of conditions are met, for example that a defendant is, or is an associate of, a member of a proscribed organisation, or that a proscribed organisation is involved in the crime. The certificate must be lodged before the first appearance of the defendants in the Crown Court. The Arbacia procceedings have not yet reached the stage at which this would be expected to be done. There are very limited grounds on which a certificate can be challenged.
an attempt to manipulate the trial process
The legislation providing for non-jury trials is temporary and must be renewed by the UK Parliament every two years.
Defence lawyers asked in advance of the committal hearing for prosecutors to disclose whether or not McFadden was a state agent and if he was, to disclose for whom he worked. Prosecutors say they are not under a duty to disclose the information at this stage, a position that defence lawyers say is "opaque and unclear" and "amounts to an attempt to manipulate the trial process." But the judge ruled that the prosecution position did not make the proceedings unfair, saying "the court is entitled to accept that the prosecution is acting in good faith." Defence lawyers indicated later that they are seeking judicial review of this decision.
The committal hearing has been slowed by complications created by the prosecution's reliance on recordings and by the involvement of MI5 officers and undercover Police Scotland officers, none of whom have yet appeared in court. The hearing was initially scheduled to end at the beginning of December but was extended through December, with the most recent hearing having been on 15 December. It is scheduled to resume on 30 January.
Prior to the committal hearing, prosecutors had failed to confirm or deny that police had obtained any expert reports in addition to those included in the committal papers. But in the course of the hearing, prosecutors disclosed an additional report commissioned by police from a voice expert. Defence lawyers say that they will need time to study the report and to obtain their own expert report. The late disclosure by the prosecution guarantees that a good deal more court time will be spent on issues surrounding the voice recordings.
The judge has refused to allow defence lawyers to put anything beyond limited questions to police witnesses about their understanding of Dennis McFadden's role, in line with his earlier ruling against disclosure of McFadden's status.
On 28 December, while proceedings were paused for the Christmas break, an article headlined How MI5 agent used Celtic tickets to infiltrate ‘New IRA’ was published on the The Times website. It appeared in the print edition on the following day. Dennis McFadden is described throughout the article as an MI5 agent. There is no suggestion in the article that this is disputed. Operation Arbacia is described as "Dennis McFadden's mission".
The Times says:
"Details of Dennis McFadden’s mission inside the organisation, codenamed Operation Arbacia, have emerged in court hearings in Northern Ireland concerning criminal proceedings against ten people.
Security chiefs believe that the undercover operation — by “the man who was always there but was never really there” — has severely weakened the New IRA. It was the most dangerous terrorist group still operating in the province and was responsible for the murder of the journalist Lyra McKee in April 2019."
Later in the article it says:
"None of those detained have been convicted but spy chiefs believe that McFadden’s work has caused serious damage to a small but dangerous organisation that had been responsible for bomb attacks, punishment shootings and the murder of McKee."
MI5 can't have it both ways
The Times is as content as the rest of the British media to act as a notice board where the secret state can post unverifiable messages to the public. But it usually tries to do so in a way that ought not to seriously mislead a careful reader. The statements quoted above are not justifiable unless The Times has been led by a credible source to believe that senior MI5 staff were not just happy with Operation Arbacia in general, but with Dennis McFadden's work in particular.
MI5 might wish to counter any public perception that Dennis McFadden is unreliable. But MI5 can't have it both ways. It cannot tell the public, even without attribution, that McFadden did good work for it and at the same time refuse to tell the court whether or not he was in fact working for it.
Perhaps the article is an indication that MI5 has finally decided to disclose McFadden's role. If not, it will strengthen the legal and political case for disclosure.
The Times contrasts MI5's confidence in McFadden's work with the fact that none of those detained have been convicted. That's an odd point to make in connection with court proceedings that are still trudging doggedly towards trial, with most of the defendants trapped in "internment by remand." Perhaps The Times is prescient. It would not be astonishing if the case were at some stage to collapse.
Photo: MI5 offices, Thames House, London. © William Barton/Shutterstock
Disclosure: The author is one of the people who have provided surety for Dr Issam Bassalat's bail.