I have notice from Senator Costello that on the motion for the Adjournment of the House today he proposes to raise the following matter: the need for the Minister for Justice to bring forward his proposals for remedying the miscarriage of justice in the Nicky Kelly case with a view to recommending a Presidential pardon. I welcome the Minister of State to the house and I call on Senator Costello to address his motion.
Adjournment Matter. - Nicky Kelly Case.
Thank you for having this as the first motion of the new session on the Adjournment. I think it is most appropriate. New evidence has come to light and it augurs well for this session that we are addressing a matter of immediate and urgent concern at the very beginning.
The matter of the motion refers to an unfortunate incident that occurred in Sallins in March 1976 when the mail train to Cork was robbed. That took place 15 years ago and immediately afterwards the usual suspects, as a book written about the event described, were rounded up by 60 to 70 members of the Garda. They amounted to about 40 to 50 people. They were interrogated and some of them were charged, duly convicted and ended up in prison. I would like to describe for a moment the context in which all of this happened. It is not exactly the context of 1991.
I would like you to take your minds back 15 years ago to the situation that existed. There was a perception at the time that there was a threat to the very existence of the State and very specific powers, if not introduced, were certainly being implemented. In the first instance the Offences Against the State Act was used very widely. That was a special piece of legislation that was introduced originally in 1939 before the outbreak of World War II. It has been used in an ordinary context as well as an extraordinary or emergency context in the years since, and particularly when it was reintroduced after 1972. This allowed suspects to be held for 24 hours and that to be increased to 48 hours on the word of a superintendent. Indeed, shortly after this event in early 1977 the 48 hours was increased to seven days' detention when we had the ironic situation that the emergency that existed since 1939 had to be rescinded to allow a new emergency to be declared which allowed special detention powers of seven days to be introduced.
That, in a sense, give you the flavour of what was happening at the time. In addition, the police operated what is known as a "heavy gang". It is not just myself who is saying that here in the privilege of the House; it is well acknowledged and recognised. The previous general secretary of the Association of Garda Sergeants and Inspectors, Derek Nally, is on record in 1977, and again in 1989, as saying categorically that a heavy gang existed and was in a position to and did in fact give names of the heavy gang to the then Taoiseach in early 1977. That was a special force of gardaí who had special functions and that was largely to elicit confessions from suspects.
Thirdly, we had the Special Criminal Court. The ordinary jury courts were not thought competent to deal with offences that were regarded as offences against the State or that were indeed serious offences. This was an extension of the use of the courts to cover matters that might not be of a political nature strictly but matters of a serious nature. Of course, these were courts without juries. That was the court that was used in this instance.
Fourthly, while the laws of evidence existed in the same fashion they operated in a different fashion. At that time it was not unusual that matters that were not supported by further corrobarative evidence other than a confession by the individual suspect were allowed to be sufficient to obtain a conviction and of course that has since been found to be very unsafe grounds for a conviction. In the case of Nicky Kelly there were no fingerprint evidence, there was no forensic evidence, there was no identification that he had been involved.
Finally, and fifthly, in terms of legal representation, there were exceedingly difficult obstacles placed in the way of legal advisers being present either during the questioning or later after the referral of the suspects into custody after they were taken to a special sitting of the District Court at midnight. That is the general context in which all of this happened — special courts, special laws being used, a special body within the police force, the acceptance of special evidence and then difficulties and obstacles to legal advisers being present when statements were elicited.
To give you a further flavour of the type of statement in the Nicky Kelly case I will briefly describe the evidence given by Kelly himself in court, his own version of the events:
(Garda A) rammed my head off the locker door. Some of the Brits treatment. Spreadeagled. Jabbed in ribs, slapped in face, legs kicked. Lights switched off. Placed behind door. Spreadeagled. Door pushed in. Collision. Ended up on ground. Once on floor refused to get up. Hair pulled. Hit on back. Frightened more than hurt. Taken upstairs by (Garda A). Smell of drink off him. Corner of cell. Toilet. Grabbed by hair. "Tomorrow — long day". Shoved head five-six times down toilet, didn't wet face. Taken out of cell by (Garda A). To wall — out of sight of cell. Short delay. Knee in groin. Caught in thigh. Spat in face. Back to cell. Five minutes there. (Garda A): "eventually you'll talk".
(Garda A) hit (me) back of ears after wrong answers. Telephone ears ten times. (Garda B) slapped in face and arms. (Garda C and Garda D) punched, punched. Fell to ground. (Garda D) hit me with chair — not much force.
On floor, on back, hands stretched backwards. Chair put on palms. (Garda A) sits on chair. Spits on face. Leering. Cried. Frightened. Don't know what they are going to do to me. Very tired, sore, ears ringing, bad headache, stomach sick, afraid of my life. (Garda A) produced blackjack. Beaten by (Garda E) on biceps. Left on table. Black lathe ten inches long, one inch in diameter. Flexible, Swish noise. "Own up, make statement". Beaten above the knee...
That is the type of description that was given. There is the independent medical examination by Dr. Seán Ó Cléirigh and Dr. Samuel Davis. Dr. Séan Ó Cleirigh, an independent doctor who examined Kelly, and Dr. Samuel Davis medical officer at Mountjoy, who examined him the following day found that the injuries he had suffered could not possibly have been self-inflicted. The evidence they gave was that in their opinion the injuries were not self-inflicted.
Arising out of that, Amnesty International introduced an investigation and sent over a team for the very first time in the history of the country to examine the allegations that had taken place, and the Kelly case was one of many. They recommended that an inquiry be established into all of the events that took place. The then Opposition spokesperson, Deputy Collins, stated that they would conduct an inquiry into the entire investigation. Subsequently, when Fianna Fáil came to power in 1977, an inquiry was set in with limited terms of reference, not so much to investigate the actual events that occurred or the existence of a heavy gang and its ramifications but largely to ensure that recommendations would be made to ensure that safeguards would be put in place to protect gardaí against unfounded allegations and also to protect victims of suspects in custody against possible ill-treatment. Barra Ó Briain's report in 1978 came up with very strong proposals to ensure that all interrogations were monitored, taped verbally and video taped as well, to prevent such an abuse again.
Kelly in the meantime had been found guilty and convicted. He eventually ended up in prison and went on hunger strike. He was invited to sue by the Government of the day and, apparently on the grounds that he would be able to take a civil action, he was informed that there were grounds for a civil action, that he would be able to take the civil action and he came off the hunger strike. Then, when he did proceed with the civil case, obstacles were put in his way on the lines of the famous Lord Denning "appalling vista" statement, namely, and I will quote from his judgment in 1983: "the public interest can sometimes be better served by imprisoning innocent persons rather than allowing a case to proceed which might undermine an institution of the state". That, coupled with the statement that Kelly already had exhausted his access to litigation and that the courts had found against him on a matter of fact, led to the conclusion that therefore there were no grounds for Kelly to pursue his case. That, of course, does not coincide with the slogan over our own courts, which says that justice must be done even though the Heavens fall. The Denning statement was in fact totally contrary to any decent and proper system of justice.
Of course, the statement was made in the context of the Birmingham Six. Since then Lord Denning has had reason to regret that statement. But the authorities who in 1983 presented that as the basis for their opposition to stop Kelly from proceeding with a civil case have not as yet withdrawn their objection to his pursuit of vindication of his rights and for damages on the basis of a civil action, even though Lord Denning has stated that he had been wrong in his judgment and wrong in his statements.
All of that new evidence has come to us through Andrew Morton, the gentleman from Scotland who has done linguistic and syntactical analysis of speech patterns and who has come to a firm conclusion that Kelly's alleged statement was not a statement by one person but by at least two persons and did not coincide with Kelly's own speech patterns. That raises new evidence on top of the existing independent evidence that was given at the time by people who were present in the Bridewell who gave evidence that there was roaring and shouting and crying in the Bridewell that night in the cell where Kelly was detained and, secondly, there is the medical evidence from Doctor Davis and from Dr. Seán Ó Cléirigh.
That bring us to the question of what should be done at this time. We are in a situation where it is difficult for Kelly to vindicate himself through the court process because of the absence of an appeal mechanism. It is not possible for Kelly to go back to the courts in the same form as the British Home Secretary was able to refer the Birmingham Six case. We do not have that channel. Considering the enormous public disquiet that existed prior to this new evidence and the fact that this has been greatly increased by the very substantial new forensic evidence in his favour, remembering that there was nothing against Kelly other than a confession elicited under duress over a period of 43 hours' interrogation in circumstances that have never been explained other than what was rather euphemistically referred to by Judge Hamilton as "self-inflicted injuries" and which was discredited by the independent medical evidence, we must look for a pardon for Nicky Kelly in this matter. The evidence is so strong at this time and there is universal concern in the same way as there was universal concern in the cases of the Birmingham Six and the Guildford Four.
We have a recommendation in the Martin report that there should be an independent inquiry established which would investigate miscarriages of justice and then advise the Attorney General who, in turn, would advise the Government to seek a presidential pardon. That is a body that must be set up because we have no other channel at present. In the immediate term we have no channel. As I said, he has been estopped in relation to the civil case, and that is not adequate by any means, but in terms of vindicating and exonerating the good name of Nicky Kelly and of his co-defendants who were convicted in similar circumstances, we have no choice but to call for a pardon.
I ask the Minister to recommend to the Cabinet that the Cabinet would recommend to the President that she would exercise her powers under Article 30.6 of the Constitution to pardon Nicky Kelly. This would be very much in line with statements that have been made by such eminent people as yourself, a Chathaoirligh. You were Minister for Justice and you are on record as stating that in your opinion Nicky Kelly should be pardoned. I was delighted to hear that. Another former Minister for Justice, Deputy Michael Noonan, has also put it on record that he believes that Nicky Kelly should be pardoned. As recently as yesterday a Minister of the Government at the time, the former Minister for Industry and Commerce, Justin Keating, stated in very humble terms that he believed that he and his Government were quite wrong in not pursuing very strongly the allegations that had come before them in relation to certain activities that had been going on and that he believed the only procedure to take at this time was to seek a pardon for Nicky Kelly through the President.
First, we should go ahead and seek a Presidential pardon, and I hope the Minister will be able to give me definite information on that tonight. Second, we must ensure there is proper vindication and exoneration of the good name of Nicky Kelly and that he would be given compensation for the trauma he suffered and the injuries that were inflicted on him. Third, we must have regard to the recommendations of the Barra Ó Briain Committee and of the Martin Committee. The Barra Ó Briain Committee recommendations relate to safeguards for suspects and for the Garda during interrogation in custody. These were taken up by the Martin report and reinforced in relation to monitoring everything that went on in a police station. The Martin Committee went beyond that and sought that this independent tribunal be established to advise the Attorney General who would then advise the Government.
Finally, I ask that an inquiry be established into the circumstances surrounding what happened, not just in the Sallins case, but how at that time a development could take place which would bring justice to such a low state that the rule of law did not operate. We must look for an inquiry into all the circumstances at the time that could allow an incident like this to arise where for a period of 15 years innocent people would not have their names vindicated. Even at this time there has been no vindication. This is one person; there are other persons in the Sallins case and there are other persons in the wider context. For the good name of justice and for the integrity of our judicial system and our legal system we must look at all the things that happened at that period but the first step along this course is to ensure that Nicky Kelly is pardoned without delay.
I wish to inform the House that the position with regard to RTE's "Wednesday Report" programme of 9 October concerning the conviction of Mr. Nicky Kelly is that the advice of the Attorney General has been sought on the various issues raised by that programme. In those circumstances it would be clearly premature and certainly inappropriate for me to comment in any way on the case in question and I do not propose to depart from that other than to say that the Minister for Justice will be guided by the advice of the Attorney General in regard to whatever steps are appropriate or are required to be taken as a result of the matters raised by the programme.
Reference has also been made to the findings of the Martin Committee and I propose to outline for the information of the House the details of the committee's recommendations. The committee's terms of reference were, in part, to examine whether there is a need for a procedure whereby persons who have exhausted the normal appeals procedures can have their cases further reviewed and, if so, to make recommendations as to what procedure should be provided and in what circumstances it should apply.
In brief, the committee recommended the establishment of an independent body with statutory powers of inquiry to examine cases where substantial doubt as to the propriety of a conviction has arisen but where the normal appeals procedure has been exhausted. The committee considered that any such case would first be examined by the Attorney General who would decide whether the case warranted referral to the inquiry body and who would advise the Government accordingly. The function of the inquiry body on the referral of a case would be to inquire into all of the available facts and circumstances surrounding the particular conviction. It would then express its opinion as to whether doubt existed as to the propriety of that conviction. Following that it would then be a matter for the Government to decide whether action should be taken and what action was appropriate in any particular case.
It will be clear that these recommendations raise important issues concerning the respective functions under the Constitution of the Executive and the Judiciary and they are currently under examination. Any proposals arising from this examination will be announced by the Minister for Justice in the normal way in due course. The primary concern of the Minister for Justice is to ensure that the scheme that is put in place to deal with issues of this kind is the right one. That is very important.
I also wish to refer to the recommendations of the Ó Briain Committee whose terms of reference were to make recommendations as to whether and, if so, what additional safeguards were necessary for the protection of persons in Garda custody and for the protection of members of the Garda Síochána against unfounded allegations of ill-treatment.
To simply suggest that the recommendations of the Ó Briain Committee have not been implemented is to ignore the factual position. Much of the Ó Briain report has been given effect. It was possible to implement certain of the recommendations it contained administratively. Other recommendations relevant to the treatment of arrested persons were largely given effect to by the regulations on the treatment of persons in Garda custody made by the Minister for Justice in 1987 under the provisions of the Criminal Justice Act, 1984. Those regulations, in fact, go further than the Ó Briain recommendations in a number of instances — for example, with regard to medical treatment and with regard to special provisions for the young and the mentally handicapped. Similarly the Garda Síochána (Complaints) Act, 1986, gave effect to the committee's recommendation for the establishment of an independent complaints procedure.
I would remind the House that the civil action by Mr. Kelly is still before the courts. The matter of alleged ill-treatment which has been referred to here tonight is sub judice and in those circumstances it would not be appropriate for me to make any comment at all on that aspect of the matter. I hope that that information is helpful to the House.
Just one brief question. The Minister said that the advice of the Attorney General is being sought on the matter. Could I ask when that was sought, when it is expected there will be a response from the Attorney General and when we are likely to have some movement from the Minister?
Based on the extra information which came to light recently, the case was referred to the Attorney General by the Minister for Justice, who has responsibility in this matter. I cannot say when the Attorney General will have examined all the information and facts available to him and report. But as soon as the information and reports and recommendations of the Attorney General come to hand the Minister for Justice will consider them and in due course take them before Government if necessary.
The Seanad adjourned at 8.35 p.m. until 10.30 a.m. on Thursday, 24 October 1991.