The Northern Ireland Divisional Court has been asked to intervene in a preliminary inquiry into terrorism charges against a Palestinian doctor in order to clarify the part played by MI5 in the case.
Dr Issam Bassalat is a Palestinian doctor based in Edinburgh. He was arrested in August 2020 over charges arising from his attendance at an alleged meeting of the New IRA in County Tyrone in July 2020. Dr Bassalat's lawyers say that he was "manipulated" into attending the meeting by Dennis Mcfadden, who they say is a state agent, that he had believed the meeting to have been organised by Saoradh and not by the New IRA, and that his sole involvement in the meeting was to provide a political analysis of the situation in Palestine.
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 Dr Basaslat and nine co-defendants began on 24 October 2022 before District Judge Michael Ranaghan in Laganside Magistrates Court and are ongoing. A committal hearing is a pre-trial process that seeks to determine whether there is sufficient evidence for trial.
The case against the 10 co-defendants relies on covert recordings made by MI5 of a series of meetings. Dennis McFadden was present at the meetings but has not been called as a witness or named as a suspect. The Public Prosecution Service (PPS) has refused to confirm or deny that he was a MI5 agent. The PPS says that it has no duty to disclose the information, but has not said whether this is because it considers the information to be irrelevant to the case, or because it considers MI5 to be immune from a duty that would otherwise exist.
Defence lawyers applied to the judge in advance of the committal hearing, asking him to take action over the non-disclosure of various materials, including material relating to Dennin McFadden's role. The district judge does not have the explicit power held by a trial judge to compel disclosure, but does have a duty to ensure fairness and could for example stay the proceedings if he decided that non-disclosure by the prosecution breached the fairness requirement. He ruled that there was no unfairness, saying "the court is entitled to accept that the prosecution is acting in good faith." Dr Bassalat's lawyers are challenging this decision through judicial review proceedings.
The proceedings are being heard before Lady Chief Justice Dame Siobhan Keegan and Lord Justice Seamus Treacey.
At a preliminary hearing on 9 January the court was told that lawyers representing Dr Bassalat's co-defendants are seeking to bring similar proceedings, but his circumstances are slightly different from theirs and raise overlapping but somewhat different legal issues. The court agreed to allow a lawyer who appeared to be representing MI5 to maintain a watching brief. The PPS was represented by Mr Tony McGleenan KC and District Judge Michael Ranaghan by Mr Kennedy. Dr Issam Bassalat was represented by Ms Brenda Campbell KC, instructed by Phoenix solicitors.
"Abuse of process"
Proceedings opened on 17 January. Ms Campbell told the court that the case was "wholly exceptional" and that there had been an "abuse of process." She said that McFadden had facilitated the presence of defendants at NGO meetings overseas and had paid for flights. SACC understands that Dr Bassalat was not one of the defendants whose flights were paid for by Dennis McFadden.
Ms Campbell explained that Dr Bassalat had made a positive case that there was an issue of entrapment but that prosecutors said, without explanation, that there was "no duty of disclosure." She noted that there had been no public interest immunity application by the prosecution. She told the court that prosecutors had become "gatekeepers of disclosure and arbiters of fairness."
Lord Justice Treacey said: "I can't recall a recent case in this jurisdiction in which a defence of entrapment has been successful."
Ms Campbell said that prosecutors had never made clear on what basis they were withholding material and had never been clear on what test they had applied in deciding whether there was material to disclose. She said that the ruling by the district judge had "effectively endorsed the prosecution position that there is nothing to see." She asked the court to quash the ruling by District Judge Michael Ranaghan as irrational and unlawful and said she would in that case imagine that the matter would be remitted to the district judge, with further questions to be put to the prosecution. She said "it is not too late to put the committal proceedings right."
Ms Campbell added that, besides the disclosure obligations of the PPS, an additional point is the question of whether MI5 itself has a duty of disclosure. She said that the circumstances of the case make MI5 an "investigating agency" with the same duty of disclosure as police under Section 26 of the Criminal Procedure and Investigations Act (CPIA) 1996.
Mr McGleenan, representing the PPS, said that it was established that intervention in committal proceedings should only occur in "very exceptional" cases and that this was not such a case. He said that any issues around disclosure could be dealt with in the Crown Court if the case were to proceed to trial.
He said that the Security Service Act 1989 makes it clear that the purpose of MI5 is not for it to be an investigating agency. He noted that Section 26 of the CPIA applies to people "charged with a duty of investigation" into crime, and that this is not MI5's role. He said that MI5 is a "third party", not an investigator and therefore does not have the disclosure obligations set out in the CPIA.
What was not discussed in court was that, following the 2006 St Andrews Agreement on implementation of the Good Friday Agreement, MI5 has been given responsibility for much of the police work previously carried out by the Special Branch of the Royal Ulster Constabulary (RUC). The RUC has otherwise been replaced by the Police Service of Northern Ireland (PSNI).
Lord Justice Treacey asked Mr McGleenan whether his statement that "nothing falls to be disclosed" was the same as saying there is nothing to disclose. Mr McGleenan was unable to provide clarification, eventually saying that this was because he was not familiar with all the details of the case.
The court directed the PPS to provide a written statement by noon on Friday 20 January clarifying its position.
New IRA-accused doctor was ‘manipulated’ by MI5 agent Dennis McFadden, court told (Belfast Telegraph, 17 January 2023
Photo: Dr Issam Bassalat shortly after his release on bail. © Julia Davidson, all rights reserved.
Disclosure: The author is one of the people who have provided surety for Dr Issam Bassalat's bail.