Will Of Former IRA Member Sealed Due To Concerns For Representative's Safety

The High Court of England and Wales has ruled that the will of Freddie Scappaticci, who was widely identified as both a leading member of the IRA and an agent for the British Government during the 1980s and 1990s, is to be sealed and made private for seventy years. This is the first time such an order has been made for a will other than those belonging to members of the royal family.

Background

Freddie Scappaticci (the "Deceased") was a well-known member of the IRA, and was alleged to have been part of its internal discipline unit, which tortured and murdered suspected informers to the British Government during the 1980s and 1990s. In 2003, the media reported that the Deceased was the undercover agent codenamed "Stakeknife", who had worked for the British Government from within the IRA. The Deceased denied this identification vigorously, but failed to obtain a statement from the Minister of State at the Northern Ireland Office that such allegations were false, despite making an application for Judicial Review.

Following these reports, the Deceased went into hiding in England, where he changed his name to Frank Cowley. He continued to receive death threats, and in 2006 the High Court in Northern Ireland granted an injunction prohibiting the publication of information which may have led to his location or identification.

The Deceased died in April 2023. There are currently sixteen claims against him pending in the High Court in Northern Ireland, relating to his alleged role in the IRA. He is also a key figure in the ongoing Operation Kenova investigation into the criminal offences committed by the alleged agent Stakeknife. This investigation continues to attract substantial press interest.

The Application

Upon his death, the solicitors named as the executors of the Deceased's will renounced their right to execute the will. An individual (the "Applicant") subsequently agreed to act as the personal representative of the Deceased, provided that their identity not be revealed and the will be sealed.

The Applicant's concern was that, if the will were made public, they (and the beneficiaries of the will), may be deemed 'guilty by association' with the Deceased and may find their lives in danger. The application for the will to be sealed was resisted by His Majesty's Attorney-General, who represented the public interest.

The hearing was held in private as the court determined that a public hearing would defeat the purpose of the order as it would result in the identity of the Applicant being revealed. However, both parties agreed that it was desirable for the court to hand down an open judgment setting out the reasons for its decision, to avoid any suggestion that there had been a "cover-up".

The Law

When a grant of probate is made in respect of a deceased's estate, the will and other relevant documents are usually open to inspection by the public. However, pursuant to the Non-Contentious Probate Rules 1987 (SI 1987/2024), a will may be sealed if the court determines that its inspection would be "undesirable or inappropriate".

Although such applications have only previously been made in respect of the wills of senior royals, it has been established that the threshold for determining inspection to be "undesirable or inappropriate" is not especially high.

The leading case on the topic is Executor of HRH Prince Philip Duke of Edinburgh v Attorney-General [2022] EWCA Civ 1081; [2023] 1 WLR 1193, in which the court considered whether Prince Philip's will should be sealed. In this case, the court set out various factors to be considered in favour of and against public inspection of a will. These factors included: whether the deceased's wishes included general publication of the will; historic and journalistic interest; the prevention of fraud, and whether publication of the will would be necessary to enable the tracing of legatees or creditors.

The Decision

The court granted the order requested by the Applicant. It accepted that there was a real risk to the Applicant's life (as well as the lives of the beneficiaries) if the will was made public. It was therefore both undesirable and inappropriate for it to be made public.

In respect of the factors in favour of publication set out in the Prince Philip case, the court held that these were not relevant. There was no evidence that the Deceased had intended the will to be made public, and the media attention surrounding his death was such that his creditors were aware, and potential legatees would have had ample chance to come forward. Although the Deceased was the subject of much journalistic interest, the will itself was in a standard form and so would not be of any real interest to the media. Additionally, there was no risk of fraud as the will would be professionally administered by the Applicant's solicitors.

The Applicant also advanced an alternative case under the European Convention on Human Rights (the "ECHR") that there was a real possibility of serious harm and possible death to the Applicant and those named in the will if the will were made public. The Applicant argued that Articles 2 (Right to Life), 3 (Prohibition of Torture), and 8 (Right to Respect for Private and Family Life) of the ECHR were therefore engaged, and that the court must exercise its powers in accordance with these rights. The court found that this case was also made out, stating that it strengthened the argument under the Non-Contentious Probate Rules.

Conclusion

As a result of the order, the will of the Deceased will be sealed for seventy years. Now that there is precedent for the sealing of wills for individuals other than senior royals, it will be interesting to see if it becomes more common for such applications to be made, particularly in instances where the wills relate to particularly controversial or unpopular figures.

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