‘Neither confirm, nor deny’

Those seeking truth and justice in the north of Ireland are facing a wall of silence by state officials hiding state crimes behind data protection legislation.

The North’s Police Ombudsman’s decision to “neither confirm, nor deny” (NCND) that it is withholding evidence of a British Army-RUC conspiracy to lie about the McGurk’s Bar atrocity has been upheld by the Information Commissioner’s Office.

It is part of a pattern of NCND statements which are being used to dismiss efforts by the public to access information which could be potentially embarrassing for the authorities.

Fifteen civilians – including two children – were massacred in a no-warning UVF bomb attack on 4 December 1971 at McGurk’s Bar Massacre.

Even before all the victims were identified, the British state briefed the media with lies about the massacre and its innocent victims. They claimed the pub was controlled by the IRA and that the bomb was an ‘own goal’ – in other words, that it had exploded prematurely.

This smear was maintained throughout the course of the conflict and beyond, compounding the grief of the families.

In 2018, Ciaran MacAirt, a grandson of two of the victims, discovered a previously undisclosed and high-level British Army file which proved that the Commander in charge of the British Army in Belfast, Brigadier Frank Kitson, and the Royal Ulster Constabulary (RUC) secretly agreed a propaganda angle within hours of the explosion:

“RUC have a line that the bomb in the pub was a bomb designed to be used elsewhere, left in the pub to be picked up by the Provisional IRA. Bomb went off and was a mistake. RUC press office have a line on it – NI should deal with them.”

The same files proved that the British Army knew that witness evidence of a loyalist attack on McGurk’s Bar was correct, but they still disseminated the lies that the massacre was the result of a republican ‘own goal’.

The Police Ombudsman did not include proof of this in its 2011 Public Statement and has refused to provide a supplementary report to reflect the significance of the new evidence.

In August 2021, Mr Mac Airt issued a simple request for information from the Police Ombudsman under the Freedom of Information Act 2001, but the office withheld the information and said it would “neither confirm, nor deny” it had evidence of police and British Army collusion.

The grandson, Ciarán MacAirt, said the response was “outrageous” and “does nothing but retraumatise our families”.

He added: “Where collusion ends and incompetence begins is anyone’s guess until our families receive a proper Article 2 compliant investigation into the McGurk’s Bar Massacre.”

Meanwhile, a victim of a paedophile priest has lost a High Court battle to establish if a deceased priest was a police informer for similar reasons.

The man challenged the PSNI’s policy of neither confirming nor denying Malachy Finegan’s suspected role as an agent. But a judge rejected his argument that the force had adopted an inflexible position in breach of human rights.

In December 2020, lawyers representing one of Finegan’s victims wrote to the authorities requesting clarification about the informer allegations.

It has repeatedly been alleged the RUC tolerated Finegan’s paedophile activities so that he could be used as an agent, including by former Bishop of Dromore John McAreavey.

The PSNI responded by stating: “The PSNI neither confirms nor denies whether Malachy Finegan was, or ever has been, an agent”.

The court refused to take action against it, ruling that the secrecy policy “is well embedded and approved in our law”, although it suggested other courses of action.

Christopher Stanley of KRW LAW LLP said access to information is “a vital element” of the truth and reconciliation process, but that relatives and those who seek to assist them in their quest for knowledge have been blocked.

He said the Freedom of Information Act “does exactly what those who hold information require it to do... it applies ‘exemptions’ almost without exception.

“Whilst civil litigation seeks the same information by way of discovery, and inquests by disclosure, the FOIA regime spends vast amounts of time and money in denying ordinary families access to information to violent events which are now historic.”

The ‘NCND’ exemption has become a blanket fallback which has been defended by the Information Commissioner’s Office. Mr Stanley said it had “never engaged in any form of reasoning or justification” to defend it.

“The proposed Legacy Bill will only serve to screw down the hatches on archives even tighter. The effect will be only to stoke the suspicion of what there is to hide and deny.”

Urgent Appeal