Questions for Operation Denton! NCND – Legacy Conundrum

JOHN OBRIEN
2 days ago
9 min read

NCND – British Policy – Legacy Conundrum - Questions for Denton!

For more details, please refer to the links provided.

“Neither Confirm nor Deny” (NCND) is a British codified response policy used by government and security agencies when asked questions about sensitive matters such as:

intelligence operations,
covert sources (agents, informants, surveillance),
classified information, or
the existence or non-existence of certain records.

Instead of answering “yes” or “no”, an agency or witness responds by refusing to confirm or deny the proposition.

What is the history of NCND in the, The Kenova Investigation (Stakeknife), Smithwick Inquiry and the forthcoming Operation Denton Report?

Operation Kenova / Stakeknife
Smithwick Tribunal (2013)
Operation Denton (forthcoming, post-Barnard)

We’ll look at how NCND (“Neither Confirm nor Deny”) is used in each setting, what the purpose of it is, and how the boundary between secrecy and accountability is being drawn.

1. Operation Kenova (Stakeknife) – NCND put on trial

Setting:Operation Kenova is/was an investigation led by Jon Boutcher (now Chief Constable of the PSNI) into “Stakeknife,” the high-level British Army/FRU agent inside the IRA’s Internal Security Unit. The suspected agent was widely believed for decades to be Freddie Scappaticci, who died in 2023. Kenova produced an interim report in 2024–2025. The Guardian

How NCND was used historically around Stakeknife:

For 20+ years, the British state refused to say publicly whether Scappaticci was Stakeknife and still maintain that position, issuing formal NCND replies. Ministers and agencies said, in effect: “We neither confirm nor deny whether X was an agent,” and courts initially upheld that approach on national security grounds — the classic NCND template. Village Magazine

What Kenova says about that:Boutcher attacks the way NCND has been applied. Kenova quotes Cabinet Office guidance: NCND is meant to be “a mechanism used to protect sensitive information” and may be departed from in exceptional cases. It is not an absolute rule of law, and it does not bind a court. Kenova

Kenova then makes three criticisms:

NCND became a blanket shield, not a narrow tool.
Kenova says it was used reflexively to shut down scrutiny of Stakeknife rather than to protect a living source in immediate danger. It hardened into culture. Kenova
NCND obstructed accountability and arguably cost lives.
Kenova’s interim findings say that secrecy around Stakeknife, including NCND, “risked, and may well have led to, other individuals losing their lives,” and prevented lessons being learned. In other words, NCND wasn’t just defensive; it helped perpetuate impunity. Kenova+1
NCND was used to protect the state from embarrassment, not only to protect agents.

Boutcher points out that, by the time Kenova was operating, the identity of Stakeknife was effectively public knowledge, universally accepted in Belfast media and Republican/loyalist circles, and the individual in question (Scappaticci) was deceased. Yet official NCND still persisted. He characterises that as “addiction to secrecy,” which damaged trust and denied victims’ families candour. The Guardian

Kenova’s legal move is important: it reframes NCND as a policy choice owned by government / Cabinet Office, not an untouchable legal doctrine. Kenova argues NCND must yield where Article 2 (right to life), accountability for murder, and victims’ rights demand disclosure. Kenova+1

Bottom line for Kenova:Kenova Failed to Identify Stakeknife as Freddie Scapatticci so it failed in its primary mission.

While it mentions allegations that Freddie Scappaticci was a senior member of the Provisional Irish Republican Army (PIRA) Internal Security Unit (ISU) and the agent known as Stakeknife, it states that the government and security forces have steadfastly refused to confirm or deny these allegations.

2. Smithwick Tribunal – ACC Drew Harris and NCND

Setting:Smithwick was a public Tribunal of Inquiry in Dublin into alleged Garda collusion in the 1989 murders of Chief Supt. Harry Breen and Supt. Bob Buchanan. Harris attended as Assistant Chief Constable (PSNI).

A key witness was then ACC Drew Harris PSNI and subsequently Commissioner An Garda Síochána, He repeatedly invoked NCND during his testimony

How NCND was used:

Harris personally and repeatedly invoked NCND in sworn evidence. He used phrases like “I can neither confirm nor deny that we are in possession of that identity,” whenever he was asked:

to identify alleged Garda informants,
to identify specific IRA members said to have ordered or carried out murders (e.g. Tom Oliver),
to confirm whether certain people were PSNI/MI5 sources,
to say whether a named (or unnamed) Garda in Dundalk fed information to the IRA.

Across the transcript he does this again and again — at least 11 distinct invocations. He would not confirm names, dates, source access, or even whether particular pieces of intelligence existed beyond the redacted summaries.

What that means in practice:In Smithwick, NCND functions as a shield to stop disclosure going any deeper than carefully sanitised intelligence summaries. Harris cooperates just enough to hand over “strands of intelligence,” but he will not go the final inch of attribution (“who said it / who did it”). The secrecy is asserted at the point of fact-finding.

Tribunal asks: “Who was the Garda?”
Harris: NCND.
Tribunal asks: “Which IRA Army Council figure ordered Tom Oliver’s murder?”
Harris: NCND in public; identity only written privately for the Chairman.

Bottom line for Smithwick:

NCND is invoked inside the hearing to limit what the Tribunal – and, crucially, the public record – can pin down. It’s protective, conservative, and still deference-to-agency. The British state (via PSNI/MI5) is controlling the tap.

3. Operation Denton – where this is heading now

Setting:Operation Denton, led by Sir Iain Livingstone, is the independent review team created to examine a huge body of Troubles-era murders attributed to the so-called Glenanne Gang and linked loyalist/UDA/UVF and republican activity, plus certain other outstanding atrocities (including Dublin and Monaghan 1974?) that raise collusion allegations. It is proceeding under the supervision of the Barnard judgment, which ruled that the PSNI Chief Constable has a duty to commission and cooperate with an Article 2–compliant investigation but that the actual review work must be carried out by an independent team which can then report. The UK Government, PSNI, and security bodies are all on notice about disclosure and source handling. UK Parliament Committees This source provides a compelling case for a review of NCND.

Why NCND matters for Denton:Denton is walking into the same minefield Kenova just mapped:

allegations of collusion (RUC, UDR, British Army handlers, Garda matters where cross-border),
protected agents,
historic murders with living next-of-kin demanding names.

The Barnard judgment and subsequent legal scrutiny emphasise two things simultaneously:

Protection of life / Article 2 ECHR: The PSNI must not expose informants or methods such that people are put at current risk.
Independent, human-rights-compliant truth recovery: Families are entitled to an effective investigation, not a stonewall.

That creates a tension. NCND will still be invoked around live CHIS, methodology, and anything that could get someone killed today — the same rationale Harris used in Smithwick (“I cannot confirm or deny that identity because it would endanger a source”). But Denton is under a stronger duty of maximal disclosure compatible with safety, because Barnard forces a structure where an independent reviewer (Denton) — not PSNI / MI5 — weighs the balance and decides what can be said. UK Parliament Committees+2Kenova+2

In plain English:

Possibly under Denton, NCND can’t just be used by the police or Security Service as a blanket veto.
It must be justified, case by case, and Denton is expected to say as much in its reporting.

This is already visible in Kenova practice: the Cabinet Office guidance Kenova cites (2017) says NCND is a mechanism, and departures are allowed in “exceptional circumstances.” Denton is almost certainly going to test those “exceptional circumstances” in multiple legacy killings, because many principals are dead, and many names are already in the public domain. Kenova+1

So Denton is inheriting Kenova’s line:

NCND survives, but it is no longer unquestionable. It must answer to Article 2, victims’ rights, and public accountability in historic murders.

Pulling the three together.

Kenova / Stakeknife

Who controls NCND? Historically, the British state / security agencies.
Function: For decades, NCND was used to refuse to admit Stakeknife’s identity and to shield the state from scrutiny.
Kenova’s critique: NCND became a blanket political firewall. It stopped accountability, damaged families’ rights, and arguably cost lives by allowing an agent involved in kidnaps, torture and murder to continue operating. Kenova says NCND is policy, not gospel, and can/should be overridden in the public interest. Kenova+2The Guardian+2
Consequence: NCND itself is now on trial. Boutcher calls for limits, transparency, and, effectively, an end to using NCND to hide wrongdoing.

Smithwick (2013)

Who controls NCND? The police witness (PSNI) in real time.
Function: Withhold names, timelines, source identities, and methodology from a public tribunal.
Justification given: Article 2 (protect life), RIPA, CHIS protection.

Consequence: The Tribunal gets “intelligence summaries,” but the public record is censored at the point where it would identify alleged Garda collusion or specific IRA actors. NCND is treated as normal, necessary, and largely unchallengeable

Operation Denton (forthcoming)

Who will control NCND? An independent review team (Denton) operating under judicially mandated Article 2 duties (Barnard), rather than PSNI/MI5 deciding alone. UK Parliament Committees
Likely function: Protect genuinely still-dangerous source identities and live methodologies — yes — but Denton will be expected to name or characterise wrongdoing (including collusion) where it is safe and justified. Will it do that?

When we look at the Smithwick Tribunal, Operation Kenova, and the forthcoming Operation Denton, each claimed or was designed to be “independent.” But independence can mean very different things in law, structure, and practice.

Let’s go through them carefully and then assess whether any were truly independent in the sense of being institutionally free from state influence, political direction, and security-service control.

Independence

1. Operation Kenova (2016 – 2025)

Mandate:A criminal investigation into murders, kidnappings and torture involving the British Army’s agent “Stakeknife” inside the IRA.Commissioned by the PSNI under Article 2 ECHR obligations, led by an independent police chief, Jon Boutcher (then Bedfordshire CC, later PSNI CC).

Independence on paper:

Separate team of detectives seconded from outside Northern Ireland.
Its own budget and governance framework.
Operational independence guaranteed by Memorandum with the PSNI and Northern Ireland Office (NIO).

In practice:

Still legally a PSNI-commissioned investigation: it derived its authority from the Chief Constable’s duty to investigate under Article 2.
Dependent on MI5 and Ministry of Defence for disclosure, which was subject to vetting and redaction.
The Public Prosecution Service controlled charging decisions.
Final reports required Home Office and NIO clearance before publication.

Boutcher nonetheless fought hard to push the boundaries.Kenova’s interim reports openly criticised the use of NCND and the culture of secrecy within the state.

Result:

Kenova was as independent as the system allowed — operationally arm’s-length, but legally inside the PSNI framework and ultimately constrained by national-security sign-off.

Assessment:✅ Substantive independence in leadership and investigation.⚠️ Limited structural independence: still a UK-state mechanism, not an external inquiry.

2. The Smithwick Tribunal (2005 – 2013)

Mandate:A statutory tribunal established by the Irish Government under the Tribunals of Inquiry (Evidence) Acts to investigate alleged Garda collusion in the 1989 murders of RUC officers Chief Supt. Harry Breen and Supt. Bob Buchanan.

Independence on paper:

Headed by a High Court judge (Peter Smithwick).
Had full powers of subpoena, evidence-taking under oath, and the protections of an Irish judicial inquiry.
Reported directly to the Oireachtas, not to any Department.

In practice:

Dependence on UK security cooperation: Almost all sensitive material came via PSNI/MI5. Those agencies set the terms of disclosure, invoking NCND repeatedly.
National-security caveats: Key intelligence was redacted or summarised by British authorities before reaching Dublin; Harris and others were bound by UK secrecy law.
No Irish access to underlying intelligence holdings: The Tribunal could not compel MI5 or PSNI to open their files; it only saw what was filtered through liaison channels.
Witness imbalance: Garda witnesses were named and cross-examined; British intelligence witnesses were anonymised or withheld.

Result:

Smithwick appeared judicially independent but was structurally dependent on what the British state chose to release.Judge Smithwick acknowledged this, writing that “the Tribunal was limited in what it could test or verify.”

Assessment:✅ Judicial independence in form.❌ Operational independence compromised by dependence on PSNI/MI5 disclosure and national-security control.

3. Operation Denton

Mandate:The largest legacy review ever mounted in Northern Ireland, examining over 90 incidents (including the Glenanne Gang murders and the 1974 Dublin–Monaghan bombings).Created after the Barnard judgment (2023) required an independent review to satisfy Article 2 ECHR.Led by Sir Iain Livingstone KCB, former Chief Constable of Police Scotland.

Independence on paper:

Formally commissioned by the PSNI but conducted by a separate team.
Operates under judicial oversight to ensure Article 2 compliance.
Reports to the PSNI Chief Constable and, through him, to the courts and families.

In practice:

Dependent on PSNI, MI5, and MoD disclosure.
The UK Government retains control of national-security redactions.
Publication of the final report will require ministerial clearance (Cabinet Office/NIO).
Staff are security-vetted under UK Official Secrets provisions.

Livingstone has pledged “maximal transparency compatible with Article 2 protection,” signalling a shift toward the Kenova model of constrained but assertive independence.

Assessment:⚖️

Procedurally independent but legally tethered to the PSNI and UK disclosure regime.The Barnard ruling ensures judicial supervision, yet ultimate control of secrets still sits with London.

Overall Assessment

None of the three bodies is wholly independent in the purist sense.Each occupies a different point on the spectrum:

Common denominator:All three rely on the state that is itself under scrutiny (PSNI, MI5, MoD, or Garda authorities) to release material.That dependency limits true institutional independence.

Bottom line

None of these inquiries or operations is fully independent in the absolute sense.They are independent in appearance and leadership, but dependent in substance on the same security structures whose conduct they are examining.

Smithwick was judicially independent but evidentially captive.Kenova was operationally independent but structurally bound.

Denton aims to be judicially supervised independence, yet still politically constrained by NCND and national-security control.

Concerns Regarding Operation Denton and Jurisdictional Responsibilities

Serious concerns must be raised about the forthcoming Operation Denton report, particularly considering the inherent bias present in its approach to information disclosure. The dependence on the very state authorities being scrutinised raises legitimate questions about the impartiality and completeness of the investigation's findings.

Furthermore, it is evident that the responsibility for investigating and examining the Dublin and Monaghan Bombings should rest with the authorities in Dublin. These events occurred within their jurisdiction, and it is only appropriate that they undertake a thorough and independent inquiry into these matters. Much information is already in the public domain.

NCND – British Policy – Legacy Conundrum - Questions for Denton!

“Neither Confirm nor Deny” (NCND) is a British codified response policy used by government and security agencies when asked questions about sensitive matters such as:

intelligence operations,

covert sources (agents, informants, surveillance),

classified information, or

the existence or non-existence of certain records.

Instead of answering “yes” or “no”, an agency or witness responds by refusing to confirm or deny the proposition.

What is the history of NCND in the, The Kenova Investigation (Stakeknife), Smithwick Inquiry and the forthcoming Operation Denton Report?

Operation Kenova / Stakeknife

Smithwick Tribunal (2013)

Operation Denton (forthcoming, post-Barnard)

We’ll look at how NCND (“Neither Confirm nor Deny”) is used in each setting, what the purpose of it is, and how the boundary between secrecy and accountability is being drawn.

1. Operation Kenova (Stakeknife) – NCND put on trial

How NCND was used historically around Stakeknife:

Kenova then makes three criticisms:

NCND became a blanket shield, not a narrow tool.

Kenova says it was used reflexively to shut down scrutiny of Stakeknife rather than to protect a living source in immediate danger. It hardened into culture. Kenova

NCND obstructed accountability and arguably cost lives.

Kenova’s interim findings say that secrecy around Stakeknife, including NCND, “risked, and may well have led to, other individuals losing their lives,” and prevented lessons being learned. In other words, NCND wasn’t just defensive; it helped perpetuate impunity. Kenova+1

NCND was used to protect the state from embarrassment, not only to protect agents.

Kenova’s legal move is important: it reframes NCND as a policy choice owned by government / Cabinet Office, not an untouchable legal doctrine. Kenova argues NCND must yield where Article 2 (right to life), accountability for murder, and victims’ rights demand disclosure. Kenova+1

Bottom line for Kenova:Kenova Failed to Identify Stakeknife as Freddie Scapatticci so it failed in its primary mission.

While it mentions allegations that Freddie Scappaticci was a senior member of the Provisional Irish Republican Army (PIRA) Internal Security Unit (ISU) and the agent known as Stakeknife, it states that the government and security forces have steadfastly refused to confirm or deny these allegations.

2. Smithwick Tribunal – ACC Drew Harris and NCND

Setting:Smithwick was a public Tribunal of Inquiry in Dublin into alleged Garda collusion in the 1989 murders of Chief Supt. Harry Breen and Supt. Bob Buchanan. Harris attended as Assistant Chief Constable (PSNI).

A key witness was then ACC Drew Harris PSNI and subsequently Commissioner An Garda Síochána, He repeatedly invoked NCND during his testimony

How NCND was used:

Harris personally and repeatedly invoked NCND in sworn evidence. He used phrases like “I can neither confirm nor deny that we are in possession of that identity,” whenever he was asked:

to identify alleged Garda informants,

to identify specific IRA members said to have ordered or carried out murders (e.g. Tom Oliver),

to confirm whether certain people were PSNI/MI5 sources,

to say whether a named (or unnamed) Garda in Dundalk fed information to the IRA.

Across the transcript he does this again and again — at least 11 distinct invocations. He would not confirm names, dates, source access, or even whether particular pieces of intelligence existed beyond the redacted summaries.

Tribunal asks: “Who was the Garda?”

Harris: NCND.

Tribunal asks: “Which IRA Army Council figure ordered Tom Oliver’s murder?”

Harris: NCND in public; identity only written privately for the Chairman.

Bottom line for Smithwick:

NCND is invoked inside the hearing to limit what the Tribunal – and, crucially, the public record – can pin down. It’s protective, conservative, and still deference-to-agency. The British state (via PSNI/MI5) is controlling the tap.

3. Operation Denton – where this is heading now

Why NCND matters for Denton:Denton is walking into the same minefield Kenova just mapped:

allegations of collusion (RUC, UDR, British Army handlers, Garda matters where cross-border),

protected agents,

historic murders with living next-of-kin demanding names.

The Barnard judgment and subsequent legal scrutiny emphasise two things simultaneously:

Protection of life / Article 2 ECHR: The PSNI must not expose informants or methods such that people are put at current risk.

Independent, human-rights-compliant truth recovery: Families are entitled to an effective investigation, not a stonewall.

In plain English:

Possibly under Denton, NCND can’t just be used by the police or Security Service as a blanket veto.

It must be justified, case by case, and Denton is expected to say as much in its reporting.

So Denton is inheriting Kenova’s line:

NCND survives, but it is no longer unquestionable. It must answer to Article 2, victims’ rights, and public accountability in historic murders.

Pulling the three together.

Kenova / Stakeknife

Who controls NCND? Historically, the British state / security agencies.

Function: For decades, NCND was used to refuse to admit Stakeknife’s identity and to shield the state from scrutiny.

Consequence: NCND itself is now on trial. Boutcher calls for limits, transparency, and, effectively, an end to using NCND to hide wrongdoing.

Smithwick (2013)

Who controls NCND? The police witness (PSNI) in real time.

Function: Withhold names, timelines, source identities, and methodology from a public tribunal.

Justification given: Article 2 (protect life), RIPA, CHIS protection.

Consequence: The Tribunal gets “intelligence summaries,” but the public record is censored at the point where it would identify alleged Garda collusion or specific IRA actors. NCND is treated as normal, necessary, and largely unchallengeable

Operation Denton (forthcoming)

Who will control NCND? An independent review team (Denton) operating under judicially mandated Article 2 duties (Barnard), rather than PSNI/MI5 deciding alone. UK Parliament Committees

Likely function: Protect genuinely still-dangerous source identities and live methodologies — yes — but Denton will be expected to name or characterise wrongdoing (including collusion) where it is safe and justified. Will it do that?

When we look at the Smithwick Tribunal, Operation Kenova, and the forthcoming Operation Denton, each claimed or was designed to be “independent.” But independence can mean very different things in law, structure, and practice.

Let’s go through them carefully and then assess whether any were truly independent in the sense of being institutionally free from state influence, political direction, and security-service control.

Independence

1. Operation Kenova (2016 – 2025)

Mandate:A criminal investigation into murders, kidnappings and torture involving the British Army’s agent “Stakeknife” inside the IRA.Commissioned by the PSNI under Article 2 ECHR obligations, led by an independent police chief, Jon Boutcher (then Bedfordshire CC, later PSNI CC).

Independence on paper:

Separate team of detectives seconded from outside Northern Ireland.

Its own budget and governance framework.

Operational independence guaranteed by Memorandum with the PSNI and Northern Ireland Office (NIO).

In practice:

Still legally a PSNI-commissioned investigation: it derived its authority from the Chief Constable’s duty to investigate under Article 2.

Dependent on MI5 and Ministry of Defence for disclosure, which was subject to vetting and redaction.

The Public Prosecution Service controlled charging decisions.

Final reports required Home Office and NIO clearance before publication.

Boutcher nonetheless fought hard to push the boundaries.Kenova’s interim reports openly criticised the use of NCND and the culture of secrecy within the state.