Dáil Éireann debate -
Friday, 29 Nov 1929

Vol. 32 No. 12

Adjournment Debate. - Release of Cavan Prisoner.

Mr. P. Smith

On Wednesday last I asked the Minister for Justice to state under what circumstances and on what grounds was the release from prison ordered of Patrick Clerkin, O'Rahilly Street, Cavan, who was convicted and sentenced to three years' penal servitude in March, 1928, for conspiracy and possession of arms and whether the Minister proposes taking any action as to releasing the other three prisoners, viz., Michael Reilly, Patrick Corr and Bernard McPhillips convicted and sentenced for the same offence.

The Minister replied: Patrick Clerkin was convicted on the 17th February, 1928, of aiding and abetting persons to have possession of firearms and of conspiracy and was sentenced to three years' penal servitude. He was released on licence on the 7th August, 1929, under the prerogative of mercy in response to a petition. It is not usual to state the reasons for which the prerogative of mercy is exercised and I think it would be undesirable to depart from that practice, but in this particular case to avoid misunderstanding I may say that the following were the considerations which moved me to advise that mercy should be shown to Patrick Clerkin: I was amply satisfied that Clerkin had no personal interest in the enterprise and that he was not aware that firearms were to be used. He lent his car to the other conspirators. I have no reason to believe that he knew anything about the firearms and he was not in the car with the others when the firearms were found by the police. He had served 18 months in prison and having regard to all the circumstances of the case I came to the conclusion that he had been sufficiently punished. In the case of the other 3 prisoners mentioned in whose possession or under whose control the firearms were found I do not propose to take any action.

The reply of the Minister shows that he did not know the facts. As is usual with the Minister, his reply is evasive and, in my opinion, a complete wriggle. I would like to compare a portion of the Minister's reply with what was said by the Judge before he passed sentence. Before doing so, I would like to refer to the circumstances of the case as they are known to me. Patrick Clerkin is an ex-officer of the National Army. Two of the other prisoners are ex-internees. Clerkin was employed by the Cavan County Council as a supervisor of machinery at £35/- per week. Two of the other prisoners, Corr and McPhillips were ordinary workmen employed by the Cavan County Council. Corr worked in the yard over which Clerkin was supervisor. The Minister stated he was amply satisfied that Clerkin had no personal interest in the enterprise. The circumstances in this case, I think, go to show that Clerkin asked these men, Corr and McPhillips, to go in his car to the town of Bailieborough where the occurrence is supposed to have taken place. The Minister states he is satisfied Clerkin had no personal interest in the enterprise, that he was not aware firearms were being used. That is the opinion of the Minister. This is the opinion expressed by the Judge when he was passing sentence: "He believed that Clerkin had been in fact the ringleader but that all four were guilty." In this case I want to show and prove to the Minister that this is a case where the ringleader has been released because of the fact that he was an ex-officer of the National Army, while the other three dupes are to be kept in prison because they had not the same connections.

Night after night questions are raised here with reference to the Department over which the Minister presides, and time and again we are faced with the wriggling of the Minister. He always tells us that there is a statement from the Civic Guards and that he has no reason to disbelieve the statement. Here is a case in which one of his own judges, appointed by him and sanctioned by the Executive Council, in coming to his decision says he believes that Clerkin was the ringleader but that all four were guilty. What other evidence has been submitted since then to the Minister that has led him to come to the conclusion that Clerkin had no connection at all, as he says, with this attempted enterprise? I think the Minister will agree that the relations of Corr, McPhillips and Reilly contribute their share in the taxation which goes to pay the Minister his salary.

Minister for Justice (Mr. Fitzgerald-Kenney)

And the salary of the Deputy.

Mr. Smith

And it goes to pay the running of the Minister's whole Department, and the salary of the Judge who tried the case and who summed up in the way I have indicated. Surely the Minister will agree that the time must at least have now arrived when high handed action and lob-sided justice of this kind should come to an end. I am not raising the question because I want to say that these men have not perhaps been sufficiently punished for the crime. The point I do make is that I am not asking the Minister to take my word for anything. I am not asking him to take some other body's word, or something I have from hearsay. I am asking him to take the summing up of his own Judge who had all the evidence before him. I am sure the Minister will not say that the Judge was incompetent to come to an intelligent conclusion on the evidence before him. I am asking the Minister to adhere to the summing up of the Judge in this case that in fact Clerkin was the ringleader but that all four were guilty. If the Minister feels justified in taking a step like this and releasing the ringleader he is bound in fact to release the others. We hear from the Minister and others a lot of talk about peace. Here is a case where the ringleader has been released because he is an ex-officer of the National Army, while the other three dupes remain in prison.

I want the Minister to tell me—I do not want any long statement——

Mr. Fitzgerald-Kenney

But I have to make a long statement.

Mr. Smith

I do not want a long plausible story from the Minister and to have him trying to get away on crooked points. I want him to tell me if, in his opinion, the Judge who presided in this case was incompetent to come to an intelligent conclusion on the evidence before him, and also if the Judge was in any way prejudiced against Clerkin that he should make the pronouncement he did when summing up.

Mr. Fitzgerald-Kenney

I will answer all these questions in my reply, but I would like to point out that I have to give a great number of fresh facts to the House, and that it will take me some time to give them. While the Deputy is speaking eloquently——

Mr. Aiken

You have twenty minutes.

Mr. Fitzgerald-Kenney

I think I will take the twenty minutes.

Mr. G. Boland

Give him all the time he wants. Give him tons of time.

Mr. Smith

I do not intend to delay the House much longer, but I want to say this, as regards the question of new facts: a considerable time elapsed from the occurrence to the trial, and I take it that a man with the responsibility of Mr. Justice O'Byrne would be very reluctant to make the statement he did if he did not feel, on the evidence before him, that such a statement was justifiable. I have shown you the connection when you allege that Clerkin had no interest in this enterprise. I have stated that he had been a member of the National Army; I have told you that he was a supervisor employed by the Cavan County Council, and that two of the men who were sent on that expedition were working with Clerkin and employed by the County Council, and I have given you circumstantial evidence to prove that Clerkin was the ringleader, as the Judge stated I accuse your Department, and I accuse you in this case, of releasing the ringleader and keeping in the dupes.

Mr. Fitzgerald-Kenney

In order that the House will understand this case I must tell them, shortly, what the facts were. Three Guards, owing to certain information which they received, laid an ambush on the road between Cavan and Bailieboro'. In the neighbourhood of Bailieboro' on this particular night they held up a car. In the car there were four men, Michael Reilly, Bernard McPhillips, a man named Lee, who was the driver of the car, and Patrick Corr. Clerkin was not in the car at the time. When the Guards held up the car Corr made a movement towards his pocket. However, he was covered by the Guards and he flung up his hands. The Guards searched them and they found on Reilly——

Mr. Smith

I am not the judge. I do not want to hear the evidence.

Mr. Fitzgerald-Kenney

I must give my reasons——

An Ceann Comhairle

Yes, but let me hear the Deputy's point.

Mr. Smith

I am not the judge in this case at all. I do not presume that the Minister is the judge, but he is taking and raking up here all the evidence that was given in this case. I hold that this evidence was given before a jury and a judge employed by the Minister, and I want him to tell me whether they were competent or not.

Mr. Fitzgerald-Kenney

You want to talk out the time.

An Ceann Comhairle

The Minister, in dealing with his advice, must be allowed to state the grounds on which he gave it.

Mr. Fitzgerald-Kenney

On one of these men — Reilly — there were found two revolvers and six rounds of ammunition. On Corr there was found an automatic pistol fully loaded, and on the third man, McPhillips, no weapon was found. I would like to draw the attention of the House to the fact that there were three men and three weapons, but I must say that for one of these weapons there was no ammunition; there was ammunition for the Webley and the automatic, but there was no ammunition for the bulldog revolver. The Guards arrested these men, and they saw that the car was one owned by Clerkin. They went to Clerkin and asked him about it. He told them a story — which was an absolute lie — that the car had been taken away from his place the day before without his knowledge. Clerkin was arrested and charged with being an accessory before the fact, and these men were charged with having firearms for the purpose of endangering life. At the trial Clerkin changed his hand, and the others also changed, making the case that this was an innocent journey and that they had gone in Clerkin's car to Clerkin's brother-in-law, who was a driver of a steam engine and in the employment of the Co. Council, in order to get one of the men — Corr — a job as a flag man.

That is the case as it was presented before the judge and the jury, and the whole case. What objects these men were out for, what they wanted to do, was then perfectly obscure. No one knew anything about it. The jury found all of them guilty. The judge sentenced them all to the same term — three years' imprisonment — except the driver, who was let out on his own recognisances. After the conviction had taken place Clerkin made a confession in prison, or rather, I should say, he put in a petition which contained a confession to the effect that the object of this expedition was to kidnap a certain individual. There was a publichouse for sale in the neighbourhood, a publichouse that had been owned by a bank, and the object of the expedition was to kidnap a person who was about to buy that publichouse. In fact, that that person — a returned American — had actually completed the purchase of the publichouse at the time. There was a movement in the neighbourhood to prevent him from buying the house, because he was buying it over a person who was thought in the neighbourhood to have a superior right to it. That statement, on my investigation, I am satisfied is perfectly true, because it was on information which the Guards had that this kidnapping was about to take place that they came upon the road, laid the ambush and intercepted——

Mr. Smith

If that was not a serious crime for Clerkin——

Mr. Fitzgerald-Kenney

I say it was a very serious crime.

Mr. Smith

rose.

An Ceann Comhairle

Let the Minister proceed.

Mr. Aiken

The Minister has plenty of time. He has another quarter of an hour.

Mr. Fitzgerald-Kenney

Well, if I am finished within the time the Deputy can then speak. That, I am satisfied, was the object. Clerkin was not in any way interested in the sale of this public house. He was not a friend or anything else of the person who was buying the public house, and he had nothing to gain by interference with the sale of the public house. I believe that those facts are true. On the evidence before me I was satisfied that there was this expedition which was planned by a person who was interested in this kidnapping, that Clerkin was not, but that he lent his car for the purpose of it. I consider it a very grave thing indeed — I agree with Deputy Smith — that any individual should be prevented from getting full value for his property. I also consider it a very grave thing indeed that the liberty of a person should be interfered with and that he should be kidnapped. I consider that a very grave offence indeed, and I consider that Clerkin was guilty of a very grave offence, and although not an active participant in this attempted outrage, at the same time Clerkin lent his car and was an accessory to it. But there was absolutely no evidence that Clerkin knew that the persons who were going out in his car were going to be armed.

Now, the evidence was that the driver Corr and McPhillips were together on this particular night, that in the neighbourhood of Bailieboro' they picked up this man Reilly, and that Reilly had upon him these three revolvers. He also had upon him a bottle of whiskey and a stonebreaker's mask. Reilly explained the possession of these things. He said that a man had died something like a year before and had given him the articles to destroy, that is to say, these three revolvers, and that by chance on this particular night he was going out to destroy these revolvers. That was Reilly's own sworn testimony. Of course that is a story that I do not think anyone would believe. But it is perfectly clear, to me at any rate, that there was no privity between Reilly and Clerkin about this outrage.

Mr. G. Boland

Notwithstanding what the judge said?

Mr. Fitzgerald-Kenney

Yes, but listen, please. The judge had not these facts before him at all. The judge and the jury did not know the expedition upon which these persons were going. Considering all the facts and the circumstances of this case, I came to the conclusion that Clerkin had been guilty of lending his car. If Clerkin had told the truth from the very beginning, if Clerkin had said: "I lent my car, I knew there was going to be this kidnapping but I did not know that guns were going to be used," he would not have been let out like Lee was let out, on his own recognisances, but I think it is perfectly plain that Clerkin would not have received anything more than a sentence of some months' imprisonment. As a matter of fact, Clerkin sent in this petition. I investigated it and I came to the conclusion that these were the facts, something like six months or thereabouts after he had been sent to jail, and I concluded that possibly six months might have been a sufficient sentence for Clerkin to serve for the offence which he had committed. Yet, if a man deliberately lies to the police and deliberately perjures himself in the witness box, without any loyalty to the other persons engaged in it, in order to save his own skin, that man could not be lightly dealt with, and I came to the conclusion that after Clerkin had served eighteen months' imprisonment, which is equivalent to a two years' sentence in point of duration of time, and also considering the fact that Clerkin had lost a pension of £50 a year by this conviction for the offence which he had been guilty of he was duly punished.

As far as the other men are concerned, I accept the fact that they went out upon this kidnapping expedition, but they went out armed. They were the persons carrying it out; Clerkin was not. But it does not follow that Clerkin might not have been more guilty. Sometimes the persons who plan expeditions and send their dupes upon them are more guilty than the persons who carry them out, but there was no evidence that Clerkin did this.

Mr. Smith

I have given you circumstantial evidence.

Mr. Fitzgerald-Kenney

There was none.

Mr. Aiken

Why did the jury find him guilty?

Mr. Smith

You want to kill time and you are trying to evade the question, as you try to evade every question raised here. If ever there was a job being offered by any future Government, you should be given the job of official hangman.

Mr. Fitzgerald-Kenney

Well, really, if the Deputy gets into hysterics——

Mr. Smith

I am asking you to answer a straight question.

Mr. Fitzgerald-Kenney

What is the straight question?

Mr. Smith

If the judge had all these facts before him why did he conclude as he did?

Mr. Fitzgerald-Kenney

It would take a surgical operation to get anything into the Deputy's head. I have already said that the judge and the jury had not all these facts before them but that subsequent investigation has shown what was the motive of this particular thing.

Mr. Smith

You have not given an additional fact that was not before the judge and jury.

Mr. Fitzgerald-Kenney

Yes, I have. I have already told you—

Mr. Smith

You have not given one.

Mr. Fitzgerald-Kenney

I beg your pardon. The object of the expedition was the most material thing of all. Now let me take the other men. These three men go out on this expedition. They are armed, and one of them attempts to draw. They go out with the intention of kidnapping — I do not say they go out with the intention of murdering—

Mr. Aiken

Unless they are members of the Free State Army they cannot do that.

Mr. Fitzgerald-Kenney

This is an attempt to prevent me from having time to finish. They go out on this expedition. They are the actual carriers out of this enterprise which the ringleader has planned, and the police knew before that that other persons had been threatened, and although they had not evidence on which they could bring a prosecution, still at the time they knew that persons were threatening other would-be buyers of this public house, and one of them was one of the men in this car—Reilly It is perfectly obvious that Reilly, who brought the guns on the scene and who had done the previous threatening, was the ringleader of the whole business, and I considered that the sentence of three years which was passed upon this man was a sentence which I would not be justified in recommending should be mitigated. Now, let me put the difference between the two cases. In the first case there were three men who were actually the persons carrying out this thing. There was no evidence of any kind that Clerkin — and he had no motive for it — encouraged them or did anything else except lend his car.

Mr. Smith

A Chinn Comhairle, I want to know if cases are to be tried in open court or in the Department of Justice.

Mr. Fitzgerald-Kenney

Cases are to be dealt with in open court, but the advice of the Department of Justice is to be given as to how the prerogative of mercy should be exercised.

Mr. G. Boland

The wires had to be pulled in the Department of Justice.

Mr. Fitzgerald-Kenney

In this particular case, having regard to all the circumstances, I thought, and I still think, that when Clerkin had served his eighteen months he had served an appropriate sentence for the lending of his car.

Mr. G. Boland

What about the others?

Mr. Fitzgerald-Kenney

I think that the other persons who went out with revolvers to carry out this enterprise will have to serve their full sentences.

Mr. Killilea

Who verified Clerkin's statement?

Mr. Fitzgerald-Kenney

I have already told you. You have not listened. His statement was that they were to go out on this kidnapping enterprise, and since it was to stop an expedition of this kind that the Guards laid their ambush on the road, I conclude, and I think even the Deputy will conclude, that that was the object of the expedition.

Mr. MacEntee

And although the judge in open court would not accept that man's evidence on oath, the Minister is prepared to accept his unverified statement, to the prejudice of his companions.

Mr. Fitzgerald-Kenney

Should not any Deputy, and surely a Front Bench Deputy, be able to follow my statement with regard to that? Must I again tell the Deputy? The judge and the jury had that before them, but what was in the petition was not before them——

Mr. Smith

You are not fit for a petty sessions court.

The Dáil adjourned at 2.30 until 3 p.m. on Wednesday, 4th December.