Submission to UN Special Rapporteur on Freedom of Opinion & Expression: The Case of Ed Moloney:
Oct 1999


British Irish Rights Watch is an independent non-governmental organisation that monitors the human rights dimension of the conflict and the peace process in Northern Ireland. Our services are available to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position on the eventual constitutional outcome of the peace process.

This submission to the United Nations’ Special Rapporteur on Freedom of Expression and Opinion concerns the situation of a journalist, Ed Moloney, who has been ordered by the Northern Ireland courts to disclose notes of confidential interviews with a source.

Ed Moloney is the Northern Ireland editor of the Sunday newspaper the Sunday Tribune, which is published in the Republic of Ireland but read throughout the island of Ireland, that is Northern Ireland and the Republic. He is a very experienced and highly respected journalist, noted for his political commentary and investigative reporting, and for his independence.

One of the many cases investigated by Ed Moloney has been that of the murder of Belfast lawyer Patrick Finucane. He was murdered by the loyalist Ulster Freedom Fighters (UFF) on 12th February 1989. Since his death a series of allegations have surfaced which strongly suggest that there was official collusion in his murder. Ed Moloney has been researching the case since 1989.

On 22nd June 1999 William (Billy) Stobie was arrested and on 23rd June he was charged with the murder of Patrick Finucane.

His arrest came after a senior English police officer, John Stevens was called in by Sir Ronnie Flanagan, the Chief Constable of the RUC (the Royal Ulster Constabulary, the Northern Ireland police) to investigate the case for a third time. On 12th February 1999, British Irish Rights Watch presented a confidential report to the British and Irish governments concerning collusion between British army intelligence and the RUC with paramilitaries over a number of years. The report, called Deadly Intelligence, set out all that was known about the murder of Patrick Finucane at that time. British Irish Rights Watch called on the British government to establish an independent judicial inquiry into the matters covered in their report, including the Finucane murder. After studying the report, the Irish government echoed that call. The Secretary of State for Northern Ireland, Mo Mowlam, passed a copy of Deadly Intelligence to, among others, the Director of Public Prosecutions (DPP), who passed a copy to the Chief Constable of the RUC. He called in John Stevens to investigate the allegations in the report. The Secretary of State told British Irish Rights Watch that the Chief Constable had done so because their report identified alleged crimes that had not previously been investigated. However, British Irish Rights Watch is of the opinion that the Chief Constable called in John Stevens in order to prevent the Secretary of State from establishing an independent inquiry. Whether they are right of wrong, the Secretary of State has since said that she cannot establish such an inquiry until the police investigation is completed.

Stobie has now confessed publicly that he was at the time of the murder a quartermaster for the Ulster Defence Association, whose armed wing was the UFF, and that he supplied the weapons used in the murder. He has also said publicly that he was acting as an informer for the RUC’s Special Branch, and that he told his handlers everything he knew at the time concerning the murder. The RUC apparently deny that he did so, but they have not denied that he was their agent. If Stobie’s claims are true, they imply that the RUC knew that named UFF men had asked for weapons, but made no effort to keep them under surveillance; that they knew these men were about to commit a murder, but did nothing to prevent it; and that they knew when and where these men were due to deliver the guns back to Stobie, but made no attempt to arrest them.

Ed Moloney had interviewed Billy Stobie in September 1990 and on various occasions subsequently concerning his role in the murder of Patrick Finucane. Before he met Ed Moloney, Stobie had also spoken in June 1990 to another journalist, Neil Mullholland, who at that time worked for the Sunday Life newspaper (he is now a press officer at the Northern Ireland Office). Although Stobie spoke to Mulholland in confidence, Mullholland departed from journalistic ethics and discussed what Stobie had told him about the Finucane murder with Bill McGookin, the head of the RUC press office. On 7th September 1990, Mullholland was formally interviewed by the RUC. He told them all he knew, but refused to sign a statement or hand over his interview notes. On 13th September 1990 Stobie was arrested and questioned about the Finucane murder during a period of seven days’ detention under emergency laws. He denied direct involvement in the murder, but admitted to being the UDA’s quartermaster, supplying the weapons used in the murder, and recovering them afterwards. He said he did not know who was the intended target, but only that it was a “top provo” (provo = member of the Provisional IRA). Stobie was released without charge, but a file was sent to the DPP.

Knowing that Mulholland had breached his confidentiality, Stobie then spoke to Ed Moloney. He agreed to tell the journalist everything he knew about the Finucane murder and various other matters in return for an absolute undertaking from Ed Moloney that he would not publish what he was told without Stobie’s express permission.

After Stevens was called in to investigate the allegations in Deadly Intelligence, he interviewed Mullholland on 3rd June 1999. On this occasion, Mullholland abandoned his ethics altogether and gave Stevens a signed statement and his original notes of his interview with Stobie. On 23rd June 1999 Stobie was charged with the murder of Patrick Finucane. On 24th June he appeared at Belfast Magistrate’s Court, where it was reported that he had made the following statement upon being charged:

“Not guilty of the charge that you have put to me tonight. At the time I was a police informer for Special Branch. On the night of the death of Patrick Finucane I informed Special Branch on two occasions by telephone of a person who was to be shot. I did not know at the time of the [name of the] person who was to be shot.”

Stobie’s solicitor Joe Rice told the court that his client was a “paid Crown agent” from 1987 until 1990 and that he gave the police information on two occasions before the Finucane murder which was not acted upon. In addition Joe Rice claimed that,

“As a result of this information at another trial involving William Stobie on firearms charges on January 23 1991, the crown offered no evidence and a finding of ‘not guilty’ was entered on both counts. My instructions are that the bulk of the evidence here today has been known to the authorities for almost 10 years. He will say that this murky web of deceit and lies spun around this murder did not emanate from him and he looks forward to the truth coming out at the inevitable trial.”

Now that his part in the Finucane murder was in the public domain and he was in trouble with the law, Stobie gave Ed Moloney permission to tell the whole story. On 27th June Ed Moloney published a very detailed account of what Stobie had told him in the Sunday Tribune. On 29th June detectives from Stevens’ team visited Ed Moloney and asked him for his interview notes with Stobie. Ed Moloney refused to give them up. On 8th July the RUC, acting on behalf of the Stevens team, applied to Belfast County Court for an order under paragraph 3 of Schedule 7 of the Prevention of Terrorism (Temporary Provisions) Act 1989 compelling him to hand over his notes. The order was granted after an ex-parte hearing at which Ed Moloney was not present. The penalty for failing to comply with such an order is an unlimited fine and/or up to five years’ imprisonment.

Ed Moloney applied to have the order set aside. He also sought discovery of Mulholland’s witness statement, the summary of Stobie’s interviews in 1990, Stobie’s witness statement of 23.6.99, and the two-page statement in support of the application for the order, presented to the court on 8.7.99. He eventually obtained Stobie’s statement of 23rd June and the statement made in support of the application, but he has not been allowed to have copies of Mulholland’s statement to the Stevens team or the summary of Stobie’s 1990 interviews with the RUC.

While Ed Moloney was waiting for his case to be heard, Stobie applied for bail. The High Court heard his application on 3rd August. The prosecution told the court that Stobie had denied any involvement in the Finucane murder when he was interviewed by the RUC in 1990. Stobie was denied bail. The situation now was that Stobie was claiming that he had admitted his part in the murder back in 1990 and that his Special Branch handlers had failed to prevent the murder or to apprehend the perpetrators, Ed Moloney had published an article confirming that Stobie had told him the same in 1990, but the crown was saying that this was all untrue, while at the same time denying Ed Moloney access to the documents which would establish the truth of the matter.

On 22nd August Ed Moloney published another article in the Sunday Tribune explaining why he had refused to hand his notes of his interviews with Stobie to the police. He said that to do so would not only be a breach of the journalists’ code of ethics, but it would have the effect of making it impossible for him to continue working as a journalist because no-one would want to give him information if they feared a court could compel him to breach their confidentiality. Furthermore, he pointed out that UDA members might seek to murder him if he handed over information that incriminated them. If any journalist was forced to reveal confidential information in such circumstances, it would have a chilling effect on the whole profession of journalism. Journalists should not be forced to become police informers. The police had known all about Stobie’s role in the Finucane murder since 1990 and did not need his notes to establish those facts.

Neil Mullholland had also refused to hand over his interview notes in 1990, but had not found himself being taken to court as was Ed Moloney.

When Ed Moloney’s case was heard on 23rd August, the police admitted that Stobie had indeed made admissions concerning his role when he was interviewed by the RUC in 1990. Detective Chief Inspector Richard Turner of the Stevens team said that Stobie had admitted supplying the weapons for the Finucane murder and disposing of the principal murder weapon afterwards.

On 2nd September Judge Hart ruled Ed Moloney must disclose the documents. He found that, in view of Ed Moloney’s declaration that he would not appear as a prosecution witness against Stobie, his notes would not be admissible in evidence unless he appeared for the defence. He found that Stevens did not need Ed Moloney’s notes in order to evaluate Mulholland’s evidence because Ed Moloney’s article of 27th June contained sufficient information to enable Stevens to decide whether or not Mulholland’s evidence was credible. However, the judge held that Ed Moloney’s article contained other information not covered by Mulholland’s evidence which was potentially of substantial value to the police investigation. He also held that Ed Moloney was not justified in giving Stobie an undertaking in the terms he did. Stobie has abandoned the right to confidentiality by agreeing to have his name and details of his crimes published. The public interest in the freedom of the press was outweighed by the value Ed Moloney’s notes would have for the police investigation. Ed Moloney was given seven days to produce the documents. The judge stipulated that the notes must be returned to Ed Moloney as soon as possible and that they must only be used for the purpose of the investigation of the Finucane murder and any criminal proceedings arising from that investigation.

In response to this judgment, Amnesty International declared Ed Moloney to be a potential prisoner of conscience. The Irish government also expressed concern about his situation, although they were compromised by their own attempts to force journalists to disclose confidential information.

Ed Moloney took an action for judicial review against the judge’s ruling. On 21st September he again applied to the court for discovery of Stobie’s 1990 police interview notes. He was gain denied access to these crucial documents.

On 23rd September the High Court heard his application for judicial review. The case ended on 28th September and judgment was reserved.

On 5th October Stobie was granted bail after the court was told that it had been misled on23rd August concerning the admissions he made in 1990. Extracts of his statements were referred to in court and corroborated all that Ed Moloney had said in his article of 27th June about Stobie’s role in the Finucane murder and about what Stobie had told Special Branch about the murder.

It should be remembered that extremely serious allegations exist of official collusion in the murder of Patrick Finucane. The information contained in the report by British Irish Rights Watch and information that has come to light since suggest that British army intelligence, the RUC, the Director of Public Prosecutions and even a government minister may have been involved. The attempts to force Ed Moloney to give up his interview notes, and the refusal to let him have access to Stobie’s interview notes, have to be seen against that background. What is truly significant about Stobie’s role is the fact that he was a Special Branch informer, that he told his handlers what he knew about the Finucane murder, and that Special Branch failed to prevent the murder or to arrest the perpetrators.

The only difference between the case against Stobie in 1990 and that in 1999 is that in 1990 Mullholland refused to sign a statement detailing his knowledge, whereas now he has done so and handed over his interview notes. Such a statement would not have been crucial to a conviction in 1990, nor is it today, because Stobie had confessed. Equally, Ed Moloney’s notes are inessential to the case against Stobie and in any case will not be admissible in evidence because Ed Moloney will refuse to appear as a witness against Stobie.

British Irish Rights Watch is at a loss to understand why the Stevens team are pursuing Ed Moloney, whose career and liberty they are putting at risk, rather than seeking to track down those who murdered Patrick Finucane, especially those who planned his murder. Stobie’s role has been known since 1990, and Ed Moloney is not in a position to add anything to what the police already know. The role played by other loyalists, mentioned in his article of 27th June, was explained explicitly in our report, which has been in the hands of the authorities since last February.


Summary of report by British Irish Rights Watch, Deadly Intelligence, February 1999

Chronology

  • Judgment of His Honour Judge Hart QC, 2nd September 1999
  • s.17 and paragraph 3, Schedule 7, Prevention of Terrorism (Temporary Provisions) Act 1989
  • Frightened Informer Claimed RUC Forced His Silence, Ed Moloney, Sunday Tribune, 27th June 1999
  • Finucane Agent Blackmailed North’s DPP, Ed Moloney, Sunday Tribune, 27th June 1999
  • British Irish Rights Watch Explosive Report Trigger For Recent RUC Moves in Finucane Case, Ed Moloney, Sunday Tribune, 22nd August 1999
  • Patten’s Views On Special Branch Will Be Crucial, Ed Moloney, Sunday Tribune, 29th August 1999
  • Stevens Has Known Finucane Killer’s Identity For 5 Years, Ed Moloney, Sunday Tribune, 19th September 1999
  • Stevens’ Team Considering A Gagging Order On Stobie’s Interviews With RUC, Ed Moloney, Sunday Tribune, 26th September 1999
  • Jounalist Challenges Order on Interview Notes, Suzanne Breen, Irish Times, 24th August 1999Finucane Accused ‘Worked For RUC’, Newsletter, 25th June 1999
  • William Alfred Stobie: Bail Application 3.8.1999, Committee on the Administration of JusticeFinuance Trial Death Suspect Granted Bail, Irish News, 6th October 1999
  • Editorial, The Times, 24th August 1999