The matter on which I am about to make a statement to the House is one of great seriousness. As soon as I was informed of the Attorney General's advice yesterday evening that some recent decisions taken in the Special Criminal Court were unsound I ordered that the relevant prisoners be released. I instructed the Secretary of the Department of Justice to immediately investigate the circumstances around the problem.
I will give as accurately as I can all of the information I have at this time, as the investigation in my Department is still continuing. I will come back to the House to expand on the information I am giving today when the inquiry is completed. Either way, I will inform the House of the outcome of the inquiry.
The facts, in so far as they can be established at this stage, are as follows. On 2 July 1996 Judge Dominic Lynch wrote to me reiterating an earlier request to be relieved of his duties in the Special Criminal Court. I decided to accede to Judge Lynch's request and directed the courts division of my Department to prepare a memorandum for Government. This was submitted to the Government on 1 August and the Government decided on that day to relieve Judge Lynch from the Special Criminal Court and to appoint Judge Kevin Haugh to that court. A copy of the Government decision was forwarded to my Department by the Government secretariat in the normal way.
The Government's decision was photocopied and circulated by my office to various officials, including officials in the courts division. This is in accordance with standard practice for all Government decisions, and the standard practice is for the division dealing with the particular issue which is the subject of a Government decision to take the necessary steps to implement it.
The precise circumstances relating to the handling of the Government decision to relieve Judge Lynch by my Department are now the subject of a detailed inquiry and all those who had any responsibility are in the process of making a statement. I am aware at this stage of some of the facts. I have been advised that disclosure of partial information could be misleading to the House and possibly leave the propriety of the inquiry procedures open to challenge.
The decision was transmitted to the courts section of my Department. The warrant of appointment for the replacement judge was received by my Department and transmitted to the courts. What is clear is, for whatever reason, Judge Lynch was not informed of his removal and continued to serve on the Special Criminal Court.
On 3 October I received a letter written to me by the Attorney General on 2 October, 1996 indicating he had been in conversation with Judge Harvey Kenny who stated there was an impression among the Judiciary that Judge Lynch was still a member of the Special Criminal Court. The Attorney requested me to establish whether the Government decision had been notified to Judge Lynch and the President of the Circuit Court.
That letter was received in my private office and referred directly to the relevant section for attention without being brought to my attention. I have ascertained that draft letters were prepared by the courts division informing Judge Lynch and the President of the Special Criminal Court of the Government decision. These letters, however, had not been finalised up to yesterday. This aspect of the matter is also the subject of the inquiry now under way.
I received a letter on 5 November from the Attorney General stating he had noted that Judge Lynch still appeared to be functioning as a judge of the Special Criminal Court. That letter was received in my office on 5 November and I saw it that afternoon on my way to a meeting in Dublin Castle. I immediately phoned the principal officer in the courts division of my Department and asked him to clarify the situation. I attended the talks in Belfast yesterday and did not have further contact on the matter until I spoke to the Secretary of the Department later yesterday evening. I will return to this point later.
I am advised by my Department that shortly before 5 p.m. on 6 November an assistant secretary in the Department, who is not in the courts division, became aware that a serious problem had arisen in that division regarding cases in the Special Criminal Court heard since 1 August by a court that included Judge Dominic Lynch. The assistant secretary, who was unable to contact the Secretary of the Department and me at that time as we were both returning from Northern Ireland, consulted the Attorney General's office immediately to get advice on the course of action to be taken. The assistant secretary was advised by that office that as the cases affected appeared to relate to prosecutions that were in being, it should be left to the DPP's office initially to determine the appropriate course of action. On that basis my office contacted the DPP's office. The Secretary of my Department, who was returning with my private secretary by car from Baldonnel, having attended the talks in Belfast yesterday, received a call on his mobile phone at about 6.50 p.m. from the Deputy Commissioner of the Garda Síochána who informed him of the problems which had arisen. The Deputy Commissioner also indicated that, following consultation with the DPP he was making arrangements to have gardaí in place in case it became necessary to bring prisoners to a court or another location. My private secretary then informed the Secretary that correspondence had been received from the Attorney General who had queried the circumstances in which Judge Lynch still appeared to be hearing cases in the Special Criminal Court despite the Government decision of 1 August. The letter to which he referred was the one received by me on 5 November.
The Secretary has informed me that this was the first he had heard of any problem in relation to this matter. He had no knowledge that the Department had failed to issue notice of the Government decision to Judge Lynch and had no knowledge of the correspondence received from the Attorney General to which I have referred earlier. The Secretary immediately phoned the principal officer in the courts division of the Department for information. He was informed that notice had not issued to Judge Lynch, that the judge had continued to sit in the Special Criminal Court and that an issue arose about the validity of decisions made by the court in cases heard by Judge Lynch.
When he reached the Department at about 7 p.m., the Secretary immediately phoned the DPP in his office. The phone was busy but, when he spoke to him at about 7.20 p.m., the DPP, who said he had consulted counsel at length, confirmed the basic facts and said it appeared that the validity of the decisions made in the cases in question was open to doubt. He emphasised, however, that, as the issues raised did not involve a flaw in the criminal proceedings themselves but related to the capacity of the court to make valid decisions in the circumstances described, he could not purport to give formal legal advice on the matter. This would, properly speaking, be a matter for the Attorney General.
The DPP also said that if proceedings were instituted by the prisoners, they would need to be brought to court. He indicated that he was in contact with the Garda on this matter. The DPP finally said he intended to contact the senior legal assistant in the Attorney General's office to suggest that formal legal advice on the matter was a question for the Attorney General. The Secretary asked the DPP to ask the senior legal assistant to phone him either at his own office or the office of the Taoiseach, where he was due to attend an official-level meeting about an unrelated matter, immediately following the conversation between the DPP and the senior legal assistant.
The senior legal assistant phoned the Secretary at about 7.50 p.m. and said he believed that the advice he would be giving to the Attorney General would be to the effect that the court decisions already referred to were unsound for legal reasons. He hoped to be in contact shortly with the Attorney General who would probably take his own advice from counsel.
Following his meeting in the Taoiseach's office at about 9.30 p.m. the Secretary advised an assistant secretary in my Department, by phone, that the principal officer responsible for prison operations should be advised of what was taking place and of the possibility that prisoners whose cases had been heard by Judge Lynch, as a member of the Special Criminal Court, might be released very soon either to attend court or travel elsewhere.
At 9.44 p.m. the Secretary received, on his mobile phone, from the senior legal assistant in the Attorney General's office the formal advice of the Attorney General that the prisoners in question should be released as soon as possible. The senior legal assistant said that he was to be phoned with confirmation of the action taken when it was taken. The Secretary decided that the Attorney General's advice should be conveyed to the Minister and that the Deputy Garda Commissioner and the principal officer in the prisons division should be advised of the developments. The Deputy Commissioner indicated that, on the advice of the DPP, the prisoners, if released, would be rearrested and brought before the Special Criminal Court today. The Secretary, who knew from earlier in the day that I would be attending the "Michael Collins" film at that time, contacted my private secretary from his home and said that he needed to speak to me immediately. I spoke to the Secretary at about 10.20/10.30 p.m. and, having heard the legal advice and the Secretary's recommendation, I ordered that the prisoners be released. I also directed the Secretary to conduct an immediate investigation into all the circumstances and to report to me at the earliest opportunity. That investigation is now under way and all staff believed to have had an involvement in this matter have been asked by the Secretary to make written statements.
The Secretary has recommended — and I am accepting his recommendation — that in the particular circumstances which have arisen here, and in order to avoid any suggestion of a lack of objectivity, it would be right to have a person or persons outside the Department involved in this investigation. I have asked the Secretary to discuss this aspect of the matter with the public service division of the Department of Finance today. I also asked the Secretary to inform the Taoiseach's office of the situation. He contacted the Taoiseach's private secretary at about 11.50 p.m. and I am advised that the Taoiseach became aware of the situation at about 12.25 a.m. I spoke to the Taoiseach at 12.30 a.m. Following my conversation with him at about 10.45 p.m., the Secretary phoned the principal officer in the prisons division and conveyed my instruction to release the prisoners. He also advised the Deputy Garda Commissioner of the situation.
The principal officer in the prisons division informed the Secretary that, on the basis of his earlier phone calls, the prison governors had initiated the steps necessary to release the prisoners. In the case of Portlaoise Prison, extra prison staff needed to be on duty given the numbers involved and the need to ensure that proper order prevailed. This involved the recall of staff who were off duty. The Secretary asked both the principal officer in the prisons division and the Deputy Garda Commissioner to let him know when the prisoners were released and whether they had been rearrested. I was in touch with the Secretary by phone on several occasions during the night and asked him to inform me immediately the releases had taken place. The Secretary was advised at around 2 a.m. that all the prisoners had been released and rearrested and he conveyed that message to me. At 11.35 a.m. this morning the Secretary was informed by an assistant Garda Commissioner that on the advice of the DPP a further prisoner should be released from Portlaoise Prison as it had been confirmed that his case had also been dealt with by Judge Lynch subsequent to 1 August. That person has also been released on my instructions and has been rearrested by the Garda. About half an hour ago I was advised that five other persons who appeared before Judge Lynch in special courts since 1 August were granted bail. I have asked the Attorney General to advise me on this matter.
Those are the facts as I have them now. As I said at the beginning of my statement, this is a matter of great seriousness and it is right that the House should be given the facts. On behalf of my Department, I convey regret to all those who have been discommoded in any way because of its failure to follow standard procedures in this matter. There should be a full, speedy and impartial inquiry into all the circumstances of this case and the House should be informed of the outcome of the inquiry.