Consideration of files examining evidence of serious criminality against Freddie Scappaticci was at an advanced staged when he died in 2023, prosecutors have said.
However, Northern Ireland’s director of public prosecutions Stephen Herron has said he cannot confirm whether a prosecution would have been brought.
Mr Herron was responding following the publication of the interim findings of Operation Kenova into the operation of the British Army’s top agent inside the IRA during the Troubles.
The report gave no confirmation that the agent Stakeknife was Scappaticci.
However, it did confirm Scappaticci was arrested as part of the Kenova operation and prosecutors were examining evidence of serious criminality against him at the time of his death at the age of 77 in 2023.
In a statement, Mr Herron said: “Today’s report and commentary referenced the strength of the evidence in relation to a suspect who died before decisions were taken.
“Consideration of all files received from Kenova in relation to this individual was at an advanced stage at the time of their death.
“There were significant evidential challenges, including issues of admissibility similar to those described in our public explanations of the decisions in other cases.
“However, the test for prosecution is not applied to individuals who are deceased and we cannot therefore confirm whether prosecutions would have been brought.”
Mr Herron said he hoped the interim report provided “a wider level of information for victims and families who have been seeking answers for many years”.
He added: “Today should rightly be about recognising the continued trauma of victims and families and identifying what can be learned to help them and society in moving forward.”
Last week the Public Prosecution Service in Northern Ireland announced that no prosecutions would be pursued after consideration of the last batch of files from the Kenova investigation.
Mr Herron said: “All of the decisions that we have taken in relation to the files submitted by Operation Kenova have been explained in detail to the victims and families concerned.”
However, he also said that the PPS is not “funded adequately” to progress legacy casework.
Mr Herron said: “The reality is that the PPS did not have sufficient resources to progress the Kenova decisions more quickly and that remains the position in relation to legacy cases more generally.
“However, skilled and experienced prosecutors and counsel were identified in advance of initial submissions to work on the Kenova files and the prosecutors directly involved dedicated the majority of their time, since 2020, to working on these cases.
“They also held multiple conferences with the Kenova team and issued advice and directions which resulted in the receipt of additional materials and reports.
“As is acknowledged within the report, any delay in decision-making was related to inadequate resources.
“I hope that the funding requirements of all parts of the justice system are recognised in future discussions about potential prosecutions in legacy cases and the need to progress these more quickly.”
Mr Herron said he agreed there is “undoubtedly a need for a dedicated legacy prosecution unit as part of future plans for dealing with Troubles-related offending”.
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