asked the Minister for Justice, if, in view of the widespread public concern about the case of Nicky Kelly, and using the authority vested in him by the Constitution, the Criminal Justice Act, 1951 and by section 33, Offences Against the State Act, without impugning the authority of the courts, he will show magnanimity from humanitarian considerations and commute the remainder of Mr. Kelly's sentence; and if he will make a statement on the matter particularly given the deteriorating physical and psychological health of Nicky Kelly.
Private Notice Question. - Prisoner's Hunger Strike.
Limerick East): I made a fairly detailed public statement on this matter last week and I sent a copy to every Member of the House. Accordingly, I do not think it necessary to take up the time of the House by repeating the details of that statement but the two main points in it can be re-stated briefly.
The first point was that much of what had been publicly stated about the court proceedings was either factually wrong or misleading. The second point was that the Minister for Justice is not a court of law with the right to decide on the guilt or innocence of an accused person, or to call into question, directly or by implication, a court's assessment of the evidence before it.
Since I made that statement, there seems to have been a change in the nature of the case being made by people seeking ministerial intervention. The claim that the appellate courts dealt only with technical issues seems — rightly — to have been abandoned and, instead, the emphasis has been on assertions which, whatever else may be said about them, directly and openly challenge decisions of three courts, namely the court of trial, the Court of Criminal Appeal and the Supreme Court. At least, it is now easier for everybody to see what is at issue. Incidentally, the public are still being given misleading and at times factually wrong information about the evidence in court, but I cannot get involved in that without appearing to have a function in relation to court hearings which, in fact, I have not.
Nothing that has been said since I issued my statement alters the basic point that it is not open to me to undertake to reassess the evidence on which the court of trial found the man guilty and on foot of which two appeal courts held that the court of trial was entitled to do so. That is what is involved in the various proposals that have been put to me. The man concerned has been found guilty of a very serious offence and his release at this stage, when he has served only a quarter of his 12-year sentence, could not be defended in the absence of a special reason and the only special reason that has been suggested is that there was something wrong with the trial or the verdict.
It is of course perfectly true that prisoners are often released prematurely but no prisoner convicted of such a serious crime would even be released at such an early stage for any of the reasons that led to those other releases or even for all of those reasons combined. The legal power vested in the Minister for Justice is not vested in him so that it may be exercised arbitrarily. Accordingly, release at this stage would imply, and would be widely recognised as implying, that I as Minister for Justice was satisfied that he was not guilty or, at the very least, that there was a sufficiently substantial doubt. I am not entitled to reach such a conclusion except on the basis of evidence that was not available to the court. To suggest that I should or could do so on the basis of what was before the court amounts to saying that I should re-try the case.
There is, of course, no basis at all for the proposition that, under the Constitution, the Government, or the Minister, have some kind of residual or supervisory power or duty to intervene in individual cases in order to ensure that justice is seen to be done. The administration of justice in criminal cases is a matter for the courts and it is only through the courts that justice can be seen to be done. Justice would certainly not be seen to be done if findings of a court which heard all the evidence and observed the demeanour of witnesses were called in question by some non-judicial authority which had no new facts before it. Least of all would justice be seen to be done by such a course when that course would involve, as the Supreme Court has pointed out, an adverse conclusion about the sworn evidence of a large number of gardaí.
Another suggestion that has been made is that the prisoner should be released as an act of mercy or, as the Deputy now put it, as an act of magnanimity. Unfortunately I do not see how the case could be approached on that basis. The verdict of the court is that he was guilty — and guilty means guilty of a very serious crime. His own claim is that he was innocent. An act of mercy or magnanimity is not an appropriate or defensible response in either case.
My position is that he was convicted by a court, that the conviction was upheld by two appellate courts, including the Supreme Court, and that as Minister I am bound to act on the presumption that the conviction is valid unless new evidence comes to light to indicate otherwise. Statements were made by Deputy Gregory on a radio programme to the effect that there was no real evidence against him at all, or more specifically no evidence except his own written statement, that that statement ought not to have been allowed as evidence, and that in those circumstances the question of my seeking new evidence should not arise. Even if I accept the Deputy's version of events as accurate — and I am not to be taken as doing so — what he is saying, as I am sure he knows, amounts to an open claim that the courts were wrong and that, in effect, I should re-try the case.
The public statement that I issued was issued so that it would be appreciated by all concerned that it was not open to me to intervene and that the only effect of continuing a public campaign for intervention would be to increase the risk that the prisoner would continue his fast with possibly tragic results. Regrettably there have been a number of people who have ignored this point. I must therefore again draw attention to the fact that a person on hunger strike is more likely to continue if he is led to believe that there is such support for him that he may be released. I have explained that authorising release is not an option that is open to me, and it is important that that be recognised. I now once again appeal to people in various walks of life, whether they be friends of the prisoner or people in public life, in the media and elsewhere, to take account of the risks attaching to any statements or actions that may encourage him to continue on this potentially tragic course.
I regret the Minister's continued hardline attitude towards this case.
A question please, Deputy.
I should like to ask the Minister, although it does seem pointless, if he will consider the many factors which seem to be unique in this case. I should like to list some of them: the unprecedented concern among many members of the legal profession, the public and Members of all parties of this House; the present mental and physical health of the prisoner; the fact that he freely gave himself up so as to clear his name; the persistent claim by all of those accused, including the prisoner, that they were innocent; the claim by the Provisional IRA that they, and not those accused, carried out the robbery; the acquittal of all others accused; the lack of any corroborative evidence other than the statement given in evidence, a statement which was accompanied by allegations of brutality by those interrogating the prisoner, and medical evidence given to substantiate those allegations. Given any or all of these factors surrounding the case, surely the Minister has the judicial function since the matter is finished in the courts—it is not a matter of being in conflict with the courts—and there are many precedents where this function of the Minister has been used——
If the Deputy wants to make a long statement he should explore another avenue which he knows is open to him.
In the light of all these factors, would the Minister not agree that magnanimity on his part would be welcomed by all sides and he would not be criticised by anyone if he were to commute the remainder of the sentence of this prisoner on humanitarian grounds?
(Limerick East): The Deputy referred to many of the facts brought out in the course of the trial and some of the facts surrounding the case. As I pointed out now and previously, I have no proper authority to set myself up as some type of appeal court superior to the Supreme Court. The Supreme Court unanimously decided that the verdict of the court of trial should stand. I cannot get involved in a debate on the merits of the issue which Deputy Gregory raised. It is not a matter for the Minister for Justice to adjudicate on guilt or innocence. That is a matter for the courts. The court of trial, the Court of Criminal Appeal and the Supreme Court have already adjudicated on these matters.
Deputy Gregory, a short question, please.
Does the Minister agree that the background to the case is one of serious allegations of ill-treatment by those interrogating Mr. Nicky Kelly and his co-accused, that this was documented in the media at the time of the trial and that it was specifically charged that there was a heavy gang operating within the Garda and that the Government later responded by setting up the Ó Briain committee to recommend on a code of safeguards——
I cannot allow speeches. I am taking the unusual step of telling Deputy Gregory that if he explores another avenue which he has been told day after day for the last fortnight is available to him, I will look on his request very favourably and do my best to facilitate him, but I do not want to have Question Time turned on its head. I cannot allow that.
I am simply asking if the Minister is concerned about the background to this case and if——
In blunt language the Chair is telling Deputy Gregory that he cannot do that under the procedure laid down for Question Time. I will go further and tell him that if he wants to raise this matter on the Adjournment and applies to me for permission to do so, I will look on his application sympathetically and generously. Then he will have 20 minutes to make a statement.
You make it very difficult for me, but may I ask a brief question because I am still confused despite everything the Minister said. Can the Minister tell the House if, as Minister for Justice, he has the judicial authority, without impugning the authority of any court, to commute the sentence of any prisoner who is not convicted of a capital offence.
(Limerick East): No Minister has judicial authority, which was the question asked by Deputy Gregory. Any powers that a Minister has must be exercised properly. They cannot be exercised arbitrarily and that is the issue here. Under the 1951 Act a Minister must act properly and not in an arbitrary fashion. A Minister cannot set himself up as superior in a judicial matter to the Supreme Court.
To take up a point made by the Deputy, I would refer him to the judgment of the Supreme Court in relation to allegations against the Garda. The judgment said that there was a clear conflict of evidence which admitted of no compromise and no possibility of error and which could only be resolved by the court deciding where the truth lay. The Supreme Court then made a judgment on that basis after making that statement—that the issue could only be resolved by the court deciding where the truth lay.
As the Minister already indicated that there is widespread concern and not just among those who may be associated with Mr. Kelly, has he taken into account the legal opinions expressed by more than 60 lawyers in the last week or so? Has he satisfied himself that the questions they raised have no grounds? What is his opinion?
(Limerick-East): A hunger strike which has gone on for a long time is a tragedy and gives rise to great concern by any humane, right-thinking person. I have had representations not only from people directly involved but from many others and from reputable organisations. There is nothing in the views they have expressed to me which would enable me to give any other answer than the one I have given today in reply to Deputy Gregory's question and the statement I circulated to all Members of both Houses.
Sir, you suggested I might raise this matter on the Adjournment. With your permission I am requesting that I be allowed to do so.
The Chair will communicate with the Deputy.
I would like to raise on the Adjournment a question which was disallowed dealing with the alleged operation of a black list in the Department of Justice.
The Chair will communicate with the Deputy.