Communications between Bobby Tohill’s lawyers, those of his alleged abductors, and the IMC calling into question the PSNI version of events failed to warrant a single mention in Tuesday’s 41-page report. That glaring omission could open up the possibility of further legal proceedings, reveals Jarlath Kearney

The public credibility of the Independent Monitoring Commission (IMC) has been hit an early blow after the public release of the organisation’s first report.

The report, which was made public on Tuesday (despite being leaked beforehand through certain sections of the media), recommended that the British and Irish governments should implement punitive sanctions against Sinn Féin over alleged IRA activity.

The establishment of the IMC was announced last September and it was formally constituted on January 7, 2004.

With the broad nationalist community now digesting the detail and implications of the IMC publication, a comprehensive analysis by the Andersonstown News concludes that the report is shoddy in its conclusions, questionable in its recommendations, sweeping in its generalisations, and riddled with a farrago of glaring inconsistencies.

Specifically, the report ‘frontloads’ an alleged abduction incident involving dissident republican Bobby Tohill at Kelly’s Cellars, Belfast, on February 20, 2004. But the Andersonstown News can now reveal that, during the past six weeks, separate communications have been instigated by both the legal representatives of Bobby Tohill and the legal representatives of the four men charged in relation to his alleged abduction, with the IMC’s Belfast-based Secretariat.

Astonishingly, however, these highly significant communications – which we understand on the one hand called into question the PSNI version of events, and on the other hand called into question the standing of any IMC investigation prior to a trial – fail to merit a single reference of any kind whatsoever in the IMC report.

An informed legal source yesterday told the Andersonstown News that this failure by the IMC could now potentially open up further legal proceedings by interested parties.

A judicial review on Monday seeking an injunction to stop publication of the IMC report by legal representatives on behalf of those accused in relation to the Bobby Tohill affair was rejected at the High Court.

It is believed that the IMC relied, inter alia, upon information from the PSNI in forming its report, and specifically on the Bobby Tohill incident.

The Andersonstown News has established that the PSNI’s controversial REMIT team, headquartered at North Queen Street barracks – a unit already linked to several high profile ‘politically sensitive’ cases – is now controlling the investigation into the Tohill affair.

Any up-to-date information supplied by the PSNI to the IMC about the Tohill investigation would, therefore, have had the direct involvement of REMIT.
Although released on Tuesday, the 41-page IMC report – which was brought forward and produced on-demand for the British and Irish governments – had been submitted to both governments on Wednesday, April 14.

The IMC publication purportedly details recent alleged activity by paramilitary organisations and, on that basis, recommends that public funding be withheld from Sinn Féin and the Progressive Unionist Party (PUP).

Crucially, the IMC was – in a little known parliamentary manoeuvre last December – provided with “immunity from suit and legal process” under legislation that was introduced by the British government through an Order in Council.

The practical legal standing of this apparent ‘immunity’ has yet to be adjudicated upon by the courts, although a written judgement from Monday’s judicial review hearing is now awaited.

Nevertheless, the Andersonstown News can reveal that the IMC, in a sworn affidavit last week, formally refused to waive this ‘immunity’ in relation to the report published on Tuesday.

Bolstered by this perceived ‘immunity’, the IMC used a press conference on Tuesday afternoon – from which the Andersonstown News was excluded, a spokeswoman said she had “no explanation” why – to raise the prospect that the organisation will, in future, publicly identify political figures whom it alleges have “responsibility” for paramilitary organisations.

Yet, bizarrely, later that day in a radio interview, the IMC said it was refusing to identify a single source cited in its report, on the grounds that identifying individuals could jeopardise their safety.

Although the IMC report was initially scheduled for publication in July, both governments called on the IMC to bring its report forward by three months, preceding June’s European elections.

The IMC report fails to mention why the organisation bowed to this political demand made by British and Irish politicians in both governments.

The IMC report says that the organisation has relied upon a range of “official and unofficial sources” in coming to its conclusions – including journalists.
Once again, however, the IMC report fails to provide any detail in terms of the nature, frequency or content of these communications.

In its analysis of the various paramilitary organisations, the IMC report falls at the first fence.

For instance, in referring to the LVF, the IMC specifically points out that, “it handed over some weapons to the Independent International Commission on Decommissioning in December 1998”.

Yet the IMC completely ignores the IRA’s three acts of putting arms beyond use – all of which have occurred since December 1998 - and the most recent of which, just last November, was characterised by the IICD as “very substantial”.

Elsewhere in the report, in language that can at best be regarded as uncertain, the IMC report states that, “one murder may be attributable to PIRA since 1 January 2003” (our italics). In this statement, the IMC actively chooses to imply culpability about an unidentified incident that it is clearly not prepared to rely upon as verifiable fact.

So, if it is not a verifiable fact, interested observers are asking, why is such a speculative and unsubstantiated comment included in the IMC report?
Despite such semantics in relation to the IRA, the IMC actively chooses to lump mention of murders committed by loyalists, such as those of John Allen by the UVF, James McMahon in Lisburn by the UDA and Andrew Cully by the UVF, together into one single sentence.

And, yet, in a decision that is neither proportionate nor consistent, the Bobby Tohill affair, involving an alleged abduction – not a murder – gets a chapter all of its own and is spread across a page and a half.

Numerous other inconsistencies are apparent in the report.
Despite noting that “charges of membership of a proscribed organisation were withdrawn at first remand” against the four men accused in relation to the Bobby Tohill affair, the IMC report fails to state why this occurred.
By making a single phone call yesterday, the Andersonstown News confirmed that this charge was dropped due to insufficient evidence.

This is significant because first remand hearings have the lowest threshold of proof when bringing charges in judicial proceedings.

The IMC report continues by saying that, “the cases of the arrested people are sub judice. In no circumstances should they be prejudiced”.

Despite this fact – and despite the lack of evidence in relation to the membership charge – the IMC nevertheless, relying on its “official and unofficial sources”, states that “the operation was one planned and undertaken by the Provisional IRA”.

And the IMC report openly ignores any reference to the IRA leadership’s statement denying that any action was ordered in relation to Bobby Tohill.
In yet another amazing inconsistency, despite stating that it “completely rejects” the term punishment beating “which both lends spurious respectability to these attacks and underplays their violence”, the IMC goes on to repeatedly use this precise term – without any qualification – throughout its report.

In relation to the UDA the IMC report notes the “autonomous” nature of local brigades and understands that recent UVF actions “were not sanctioned by the leadership”.

Yet, on the basis of an “indicative pattern” – not a hard fact – the IMC report extrapolates that IRA actions have taken place under “effective direction by the leadership”.

Incongruously, the report later states – in apparent conflict with the earlier statements about the UDA and UVF – the IMC’s conviction that “the leadership of the paramilitary groups is directing rather than seeking to prevent the activities set out in earlier Sections of the report”.

In dealing with Sinn Fein and the PUP, the IMC takes a subtle – but, crucially, qualitatively different - approach, highlighting that “there might not have been a PIRA ceasefire in the first place without influence from the leadership of Sinn Fein”, whilst actively choosing to illustrate its satisfaction that the PUP “exerted a positive influence in achieving the loyalist ceasefires”. The difference between the two observations is stark.

In terms of defining a relationship between Sinn Fein and the IRA in order to bolster the case for sanctions, the IMC says that, “it is difficult to be precise”.
However, in the very next sentence the IMC actively chooses to present the situation as it believes “can reasonably be summarised”, asserting an unsubstantiated and unidentified linkage between senior Sinn Féin figures and senior IRA members.

Whilst attempting to play up this alleged linkage, even the IMC report is forced to note that Sinn Fein “is not in a position actually to determine what policies or operational strategies PIRA will adopt”.

Nevertheless, it recommends financial sanctions against Sinn Féin and implies that if the Assembly was sitting, that recommendations would have been made to eject Sinn Fein ministers from office.

Despite the publication of Judge Cory’s reports two weeks ago outlining the detailed and long-standing role played by Special Branch, MI5, and FRU in directing and resourcing loyalist murder gangs, the IMC report fails to make a single mention of the relationship between loyalists and their handlers in various branches of the Crown forces – either historically or currently.

Observers have also noted the contrast between the British Government’s decision not to proceed with a Public Inquiry, recommended by Judge Cory into Pat Finucane’s murder, allegedly due to ongoing judicial proceedings, with the decision a fortnight later to publish detailed material about the Bobby Tohill affair even before the PSNI has submitted its file on the case to the Director of Public Prosecutions.

Journalist:: Jarlath Kearney

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