I should like, with the permission of the Chair, to give some of my time to Senators Michael D. Higgins and Lanigan on this issue. I have no desire to exacerbate a serious situation but it would be a failure in the responsibilities of this House, as a House of the Oireachtas, if we did not attempt to discuss a serious issue. I should like, therefore, to put some of the salient points of Nicky Kelly's case on the record. I am sure the Minister will adequately and ably put the contrary case.
Among the agencies that are concerned about Nicky Kelly's case are Amnesty International. They say they do not sit in judgment. They are not interested in a verdict of guilty or not guilty but concerned with the standards of a fair trial. They ask if it is in line with international standards of fair trial to accept certain standards of evidence; is it in line with the standards of a fair trial to hold someone in communicado for days after his arrest without a medical examination or without access to the solicitor of his choice? It was, after all, after prolonged questioning, almost three days questioning, that Nicky Kelly signed a confession.
The situation is that on Monday morning, 6 April 1976, at 9.55 Nicky Kelly was arrested under the Offences Against the State Act and brought to Arklow Garda Station. He was then brought to Fitzgibbon Street Garda Station in Dublin. From 12 noon to midnight he was interrogated by gardaí. He was then transferred to the Bridewell where he spent the night. Questioning resumed in the morning and continued until 1 p.m. He was interrogated again from 3 p.m. to 6.30 p.m. and from 11.30 p.m. throughout the night. It was in the early hours of Wednesday morning that he made verbal admissions of guilt. He signed a written confession at 5.15 a.m. That was the only evidence that existed against him: the written confession signed after about 60 hours in Garda custody. He was convicted and sentenced to 12 years along with two co-defendants. He was not in court; he had absconded while on bail. He subsequently withdrew the confession, or tried to withdraw it, and alleged that he had been ill-treated in Garda custody.
The situation is that the three defendants were admitted to Mountjoy Prison and were examined by the prison doctor. He found on Kelly extensive bruising on the arms, shoulders and buttocks. During cross-examination that doctor admitted that it was, of necessity, a cursory examination and that he might have missed other marks. Later that evening two doctors were brought in by Kelly's solicitors to examine him. Their examination was more thorough and they found more bruising, some around and in the ears. The following day another doctor examined him and found the left shoulder and scapula area had extensive bruising going from the top of the acromion towards the scapula. There was linear bruising measuring five inches by two inches and three inches by one inch. Suffice to say that there was ample evidence that somebody had inflicted some physical damage on Nicky Kelly. This was obviously argued in the courts. The prosecution argued that since (a) the gardaí denied assaulting him and (b) since Kelly had spent some time alone in his cell and some time in company with another prisoner he had the opportunity either to inflict the injuries on himself or to have somebody else inflict them on him.
The Special Criminal Court accepted the prosecution case that the confession was entirely voluntary and had not been extracted under duress. In the case of his co-defendants, when the case was appealed the courts found that, in fact, there had been breaches of the rules under which evidence was taken. They did not accept that they had been beaten but they did accept that there were breaches of normal practice which would constitute oppressive questioning and the other two defendants were discharged and are now free.
It was at this stage that Nicky Kelly returned from the United States where he had been in receipt of psychiatric treatment. That is where the present saga began. He attempted to appeal his case. May I say that in the factual account the Minister has presented on this case there is nothing I would dispute. The factual account is quite correct. I am not alleging or suggesting that there was anything which was factually incorrect. Both the Court of Criminal Appeal and, ultimately, the Supreme Court did not concede his appeal. That is the source of our present dilemma. The Minister has said that he cannot do anything about this case unless fresh evidence is presented.
There is, of course, evidence which is acceptable to the courts, a particular form of evidence governed by a lot of principles of which I would not claim to be an expert. There is the other kind of evidence that public opinion takes note of. In particular, there is the climate that prevailed here in those years of 1976 and 1977 of which I can give personal testimoney. I, as a totally innocent citizen, was followed home by the security section of the Garda. My flat was observed by the security section of the Garda. They changed shifts at midnight and continued the observation of my flat into the early hours of the morning. A friend of mine, again totally innocent, was confronted one night, asked where he was going and asked would he not be better off at home in bed at that hour of the night. We were totally innocent. Fortunately we were reasonably articulate and, therefore, not particularly oppressed by this. But that was the atmosphere that prevailed. There was international concern about allegations of ill-treatment of prisoners in custody. Amnesty International were concerned. A major Irish newspaper published, and never found any reason to withdraw, a series of articles about ill-treatment of prisoners. We eventually set up a committee of inquiry to look into the question of how we could best look after both the interests of prisoners and the interests of the Garda so that unfounded allegations could not be made against them. It is regrettable that a number of the major recommendations of that commission were never implemented. I, for one, very much doubt if there would be any problem about the Nicky Kelly case if those proposals had been implemented, because either there would have been no doubt that his confession was voluntary or there would have been no confession, and that would be a far more acceptable situation.
The major consideration is that the Minister has some obligation to face up to the fact that there was at that time widespread public concern about certain activities of certain members of the Garda and that there were in addition expressions of concern from various eminent and independently-minded agencies and individuals. A major aspect of this case is that it happened at a time when there were serious public reservations. That is one of the reasons I am convinced there is so much public concern about this case, because of how it happened, and because of the climate of attitudes to security that prevailed in the country at the time. That is not evidence that can be presented to a court but it is evidence that can be adjudicated upon by a politician. That is the reason I feel the Minister ought to look at this question again. That is the reason why I think there is great need for consideration of it.
The Minister is mistaken in thinking that to make a concession under these circumstances would be interpreted as weakness. I do not believe that to be flexible and humane is anything other than to be strong and courageous. I do not believe there would be a succession of other hunger strikes if Nicky Kelly were to be released, or if some progress were to be made towards achieving that goal. I do not believe there is a conspiracy behind Nicky Kelly in the way that has been alleged to me on occasions in recent times. Therefore, I appeal again to the Minister, as I have done indirectly before — and I regret that, because I would have preferred to have raised this matter first in the House before it was raised anywhere else, as that is the way I think we should do out business — to reconsider his position.
