Published Tuesday, 02 October 2012
Jean McConville, who disappeared in 1972, pictured with three of her children. (© Pacemaker)
Anthony McIntyre was seeking to restrain disclosure of confidential archived material compiled for a history project at Boston College in the United States.
PSNI detectives wanted access to all interviews he carried out with Dolours Price as part of their investigation into the 1972 murder of Belfast woman Jean McConville, one of the so-called Disappeared.
Mr McIntyre claimed releasing the tapes and transcripts to police would put him under greater threat of being killed by dissident republicans who would perceive it as a betrayal of the IRA's code of silence.
However, a judge dismissed his case after a senior detective stated he was not aware of any current, increased risk to the researcher due to his work on the project.
Mr Justice Treacy said: "In light of the unequivocal response from the PSNI, supported by the threat assessment from the security authorities, I conclude that the applicant has failed to make out an arguable case that disclosure of the Boston College tapes would, as he claimed, materially increase the risk to his life or that of his family."
Loyalist and republican paramilitaries gave interviews to Mr McIntyre and journalist Ed Moloney for the college's Belfast Project, an examination of the conflict in Northern Ireland.
Those who took part included Price, who was jailed for her part in a bomb attack on the Old Bailey in London in 1973.
Recordings were carried out on the understanding that they would only be made public once interviewees had died.
However, the US courts have ruled that the Price interviews should be handed over to the PSNI.
The court heard Mr Moloney has stated that his research colleague's interviews with Price contain nothing relevant to the Jean McConville murder investigation.
Lawyers for Mr McIntyre argued that his Article 2 right to life under the European Convention on Human Rights trumped the PSNI's legal obligation to investigate murder.
But Mr Justice Treacy ruled that the former IRA man's rights cannot prohibit police from seeking or receiving material relevant to a serious, live criminal inquiry.
"Investigating murder and gathering relevant material is not only a requirement of domestic law, but it is also a requirement of the positive duty which Article 2 imposes upon contracting States," he said.
Rejecting Mr McIntyre's application for judicial review, the judge added: "On the applicant's case the PSNI is prohibited from receiving material no matter how probative - even a confession to murder if it exists - because of the risk from the IRA, dissident or otherwise.
"The very notion that a risk generated by the perpetrators or their associates could require the PSNI, or indeed the Court, to effectively suppress material potentially relevant to murder is fundamentally inconsistent with the very nature of the rule of law and Article 2 itself."
Despite the ruling, the PSNI will not yet automatically gain access to the tapes. Lawyers for Mr McIntyre are expected to lodge an appeal against Mr Justice Treacy's decision.
Meanwhile, any handover of the material has also been put on hold by the courts in America, pending a further hearing before the US Supreme Court.
Mr McIntyre's solicitor, Kevin Winters, confirmed: "We have consulted with our client and we are set to appeal.
"We also welcome the stay that has been granted in the American courts because it prevents the handover of the tapes.
"That decision assists Mr McIntyre while he deals with the outstanding appeal issues arising from today's judgment."