The father of an IRA murder victim has lost a High Court battle to have perjury charges brought against a west Belfast man for denying he was the top British agent Stakeknife.

Frank Mulhern challenged the Public Prosecution Service’s alleged failure to have Freddie Scappaticci face criminal proceedings. But judges dismissed his bid to secure a judicial review after ruling that a continuing police investigation into dozens of murders linked to the spy will also examine the perjury claims.

Mrs Justice Keegan said: “We consider that it would arguably be a breach of the (prosecutorial) code to pre-empt the outcome of Operation Kenova and make a decision without being fully informed whilst that investigative work is ongoing.”

The case centred on an affidavit sworn by 72-year-old Scappaticci back in 2003 during his own failed attempt to force the British Government to state publicly that he was not the Army’s highest-ranking mole inside the IRA.

Mr Mulhern’s legal team contended the PPS acted unlawfully when it originally decided in 2006 not to prosecute on the basis of that statement. Even though that decision was later set aside, they argued the continued failure to charge Scappaticci with perjury cannot be justified.

Counsel claimed there was enough evidence to potentially meet the test under the prosecutors’ code. He also questioned how the alleged agent could mount a defence to any charge by relying on a claim of acting out of necessity based on fears for his life.

Earlier this year, Scappaticci was reportedly arrested, questioned and released on police bail as part of a major and ongoing outside investigation into Stakeknife’s activities. Codenamed Operation Kenova, the probe headed up by Bedfordshire Chief Constable Jon Boutcher is looking into a catalogue of IRA murders linked to the undercover agent — including the killing of Mr Mulhern’s son in 1993.

Joseph Mulhern

Joseph Mulhern, 23, was abducted, interrogated and shot by the IRA, who accused him of being a police informer. His body was dumped on a remote hillside near Castlederg, Co Tyrone. In an affidavit lodged as part of his challenge, Mr Mulhern claimed to know who was behind his son’s death.

He stated: “It has been widely reported that he was killed by the so-called ‘Nutting Squad’, a group within the Provisional IRA which was responsible for internal discipline.

“At the time of my son’s murder, Freddie Scappaticci was not only a senior member of the Provisional IRA, he was also an agent of the British Army, known as agent Stakeknife.”

Scappaticci left Northern Ireland in 2003 after being named in the media as the spy. Before quitting his home, however, he vehemently denied being the agent while in charge of the IRA’s internal security team.

Counsel for the PPS resisted the legal challenge due to Operation Kenova’s continuing inquiries. He argued that the proceedings were an attempt to compel the Director of Public Prosecutions (DPP) to take a decision before an investigation, which is also examining the perjury claims, is completed.

Mrs Justice Keegan, who heard the case with Lord Chief Justice Sir Declan Morgan, backed the PPS assessment.

“Insofar as the public interest is engaged we observe that this investigation is a critical step in the search for truth in relation to the activities of agent Stakeknife,” she said.

The judges also held that the DPP has been open and transparent in public pronouncements about the issue.

“Accordingly, we do not consider that any irrationality or unreasonableness can be attributed to the proposed respondent in relation to this decision-making process,” Mrs Justice Keegan added. “It cannot be characterised as unlawful.”