I should like to explain to Deputy Gregory that in the ordinary course of events he would have 20 minutes and the Minister ten minutes but because of the time for the division he now has ten minutes and the Minister five.
Adjournment Debate. - Prisoner's Hunger Strike.
Deputy De Rossa is anxious to contribute also. In his statement today the Minister said it was not open to him to intervene in the Nicky Kelly case. Saying that it was not proper for him to intervene the Minister said that Mr. Kelly's release could not be defended in the absence of any special reason. The arguments of the many concerned individuals and organisations calling for Mr. Kelly's release are in complete contradiction to the Minister's remarks. There is no question but that the Minister has the legal authority to intervene. Under section 33 of the Offences Against the State Act he has absolute discretion to remit in whole or in part the sentence of anyone tried and convicted in the Special Criminal Court of a non-capital offence. He also has the legal authority under the Criminal Justice Act, 1951, and under the Constitution the President, or other proper authority, has the power to commute sentences. There are no rigid criteria laid down for this legal power; it is a matter for the Minister. That is the legal advice I have listened to from the considerable body of legal opinion that has been making statements on this case.
The Minister told the House that he could only consider this if there was a special reason but there have been quite a number of what many reasonable people would consider to be special reasons in this case. The one that has been highlighted again and again is that the case, among all others in the troubled history we have had in the last ten years and the cases tried by the Special Criminal Court, and other courts, has aroused unprecedented concern among a substantial body of the legal profession and the public. We must also consider the whole background to the case, the allegations of brutality during interrogation, the medical evidence to substantiate this, the lack of any corroborative evidence whatever to back up the signed statements, the acquittal of his co-accused on virtually identical evidence and the claim by an organisation, the Provisional IRA, with whom Nicky Kelly did not have any connection good, bad or indifferent, a claim without precedent, that they carried out the mail train robbery for which Kelly was convicted. Kelly has gone to the extreme lengths of enduring a hunger strike, after giving himself up to clear his name, to protest his innocence. All of those matters surely warrant consideration as special reasons to allow the Minister to use the legal power he has.
The next point is one which has been overlooked out of consideration that the Minister should not be seen to be in conflict with the decision of the courts or, as the Minister has so often stressed, he feels this is where this case could lead. This point has not been made by others but it should not be overlooked. Everybody must accept that there is a possibility that any prisoner is innocent. This possibility might be remote but it remains, particularly when one is convicted on the sole basis of a signed statement, without any corroborative evidence.
Surely the Minister accepts that neither the courts nor the public at large hold the view that there is no possibility of error, in other words, that the courts are infallible. Surely that is why 60 members of the legal profession petitioned the Minister to release Mr. Kelly. Do the legal profession wish to impugn the authority of the courts? I hardly think so. I want to put on the record that I firmly believe Mr. Kelly is innocent. I am not asking the Minister to share that belief but I am asking him to accept that that possibility exists.
The Minister seems to lay great stress on the fact that not only the Special Criminal Court but also two courts of appeal upheld Mr. Kelly's conviction. Will the Minister not accept that the crucial issue in the case against Nicky Kelly is that once the non-jury Special Criminal Court rejected the allegations of ill treatment during interrogation, and once that court decided that the statement signed by Mr. Kelly was made voluntarily, that became a finding of fact which the appeal courts could not examine or inquire into? Therefore the appeal courts could not rule on the voluntary nature of the statement which was the real basis — I would say the sole basis — of Mr. Kelly's conviction. Again I am quoting from legal opinion which has published this statement widely. I am not giving a view on it, I am simply quoting.
I do not want to conclude without referring to what I consider the most disturbing aspect of the case which must concern the Minister and, if there were no other considerations involved, could be seen as a special reason to commute Mr. Kelly's sentence. I refer to the background of the case which is well documented with very serious allegations of ill treatment by those interrogating Mr. Kelly and his co-accused. It was specifically charged that there was a heavy gang operating at that time within the Garda force. That fact cannot be denied because it was very well documented in the media. The Government later responded by setting up the O'Briain Committee to recommend on a code of safeguards for interrogation procedures. This alone is one of the aspects which caused so much public concern about the Nicky Kelly case.
I appeal to the Minister to reconsider what seems to be an intransigent stand, to consider the possibility that this man is innocent and to consider the widely held view among a large number of the legal profession that in this one exceptional case justice was not seen to have been done.
Deputy De Rossa has one minute.
I thank Deputy Gregory and the Chair for this opportunity to contribute to this debate. My intervention is purely on the basis that it has been brought to my notice that there may be legal anomalies involved in Mr. Kelly's case. I have no sympathy with the political associates of Mr. Kelly or their activities or actions but the views of more than 60 lawyers who recently expressed doubts about this case ought to be seriously considered. It is on the basis of representations made to me by members of Mr. Kelly's family and a number of constituents that I urge the Minister to take seriously the many representations that have been made in relation to the legality of this case.
Limerick East): I find it difficult to accept that Deputy Gregory does not understand the position of the Minister for Justice on the issue that arises here. The Deputy must know that what he is asking me to do is to re-try the case. He refers, for instance, to the absence of corroborative evidence. He refers to the allegations that the prisoner was beaten and so on. Surely it is obvious to the Deputy that those issues were evaluated by the court and that what he now seeks is that I should re-evaluate them with a view to justifying a ministerial intervention. I refer him again to a quotation from the Supreme Court judgment which said there was a clear conflict of evidence which admitted of no compromise and no possibility of error and which could be resolved only by the court deciding where the truth lay. The Supreme Court did evaluate the substantive issue and the quotation I have read indicates their approach and conclusion.
The Deputy also referred to magnanimity on my part. I answered that earlier today. If Mr. Kelly's claim that he is innocent were to be accepted, he would be entitled to be released as an act of justice, not of mercy. If it is not accepted, it is not a situation where it is possible at this stage to justify an early release as an act of mercy. The crime was too serious for that. The Deputy is simply wrong in his claim that there are many precedents. There is in fact no precedent that I am aware of, that my Department are aware of, or that anybody else has been able to produce to me. I do not mean a precedent simply for the early release of a prisoner — I have dealt with that — I mean a precedent for the release of a person convicted of a serious crime after only one-third of his sentence has been served, in a situation such as this.
The Deputy referred to my attitude as being intransigent. It is not a question of intransigence. Deputy Gregory says he believes Nicky Kelly is innocent. I have said in all my statements on this issue that it is not for the Minister for Justice to adjudicate innocence or guilt. There is a separation of powers between the Executive and the Judiciary. That case was heard by the court of trial, by the Court of Criminal Appeal and the Supreme Court on appeal. The Supreme Court decided unanimously, with the Chief Justice issuing the judgment, that the verdict of the court of trial should stand. Deputy Gregory referred to the fact that Mr. Kelly's co-accused were released. They were released on an appeal to the Court of Criminal Appeal and the same three judges who released them also examined Mr. Kelly's appeal, and the same three judges decided that whereas the appeal of his co-accused stood up, his appeal did not.
I am not trying to re-evaluate the evidence. I am not arguing innocence or guilt. That is a matter for the courts and the courts — three separate courts, at least seven of the principal judges of this country — decided that the court of trial acted properly. In the absence of new evidence I cannot exercise powers which the Minister for Justice has in theory but in practice, if applied on the criteria suggested by Deputy Gregory, would enable a Minister for Justice to let everybody out of prison, apart from people who might be there for contempt of court. Nobody suggests that a Minister for Justice should act arbitrarily in the exercise of the powers conferred on him. A Minister must act properly and responsibly. He must have reasons for acting and there is no possibility of acting in this case in any manner in which a Minister would not openly state or directly imply that the courts I have mentioned were either mistaken or incompetent in the manner in which they handled the affairs in this case. As I said earlier today, there is no possibility of his release at this stage unless it is on the basis that there was something wrong with the trial or the verdict and I have no right whatsoever to decide that there was something wrong with the trial or the verdict.
I am very concerned that a young man should risk his health, even his life, on a hunger strike. I do not think anybody in this House or in the community as a whole wants this, but the impression that I can, by a simple decision, resolve this problem is, I regret to say, very far removed from reality. I cannot do that. I can only renew the appeals I have already made. Surely the main point now is for all concerned to accept that while imprisonment is unpleasant, it is not the end of the world for a man of 31. In one way or another the time will come when he can be released without the complications that now arise and he will then be able to build a new life. I hope the people who are supporting the campaign for his release and the people who have influence over him will advise him to end his hunger strike. He is not serving a mandatory life sentence. There is no decision that he should serve 30 or 40 years, as happened in other cases. In the normal course of events Nicky Kelly will be released. Anybody who has influence over him should make the point that the campaign being conducted will not be successful. He has already served three years of his 12 years sentence and everybody in the House is aware of the mitigation in the normal course of events that is available to prisoners serving sentences of that length.
The Dáil adjourned at 9.34 p.m. until 10.30 a.m. on Wednesday, 1 June 1983.