asked the Minister for Justice if he is prepared to release Mr. Nicky Kelly from custody in Portlaoise prison.
Ceisteanna—Questions. Oral Answers. - Portlaoise Prisoner Release.
6.
(Limerick East): As a matter of principle I am not prepared to discuss at Question Time in this House whether, in relation to any particular case, I am going to exercise my powers of remission and commutation when a person has been convicted of a criminal offence. Because of the widespread and prolonged agitation in relation to this particular case, I am prepared to make some comments here about it but I do not intend thereby to set any precedent.
Since I assumed office I have received representations from members of this House and from persons outside the House about this prisoner — some seeking the release of the prisoner, others seeking information on the matter. Many of those who were in touch with me were themselves apparently approached by a committee, which has alleged that the prisoner was wrongfully convicted and was illtreated by the Garda.
As Deputies will be aware, the prisoner is serving twelve years' imprisonment having been sentenced in absentia for his part in what is known as the Sallins Train Robbery.
Throughout the first trial of this case in the Special Criminal Court, which had to be abandoned due to the death of one of the judges and the second trial in the same court, allegations of improper conduct were made against members of the Garda who were involved in the investigation of the robbery and who gave evidence in the subsequent trial of the prisoner.
It was alleged that the prisoner — and others who were subsequently acquitted by the Court of Criminal Appeal — was innocent of the offence and that he — and they — were illtreated by the Garda during questioning to such a degree that untrue admissions of involvement in the robbery were made.
The prisoner absconded while on bail and did not return until after his codefendants had been released following a successful appeal by them to the Court of Criminal Appeal. On his return to this country he was ordered by the Special Criminal Court to be committed to prison to serve his sentence. Subsequently he appealed to the Court of Criminal Appeal and then to the Supreme Court.
In so far as any of those who made inquiries or registered protests in relation to the case may suppose that the appeal courts, including the Supreme Court, were not in possession of all the evidence available to the court of trial or that those courts would not have been empowered to upset the verdict if they considered that the evidence did not justify it, they can be assured that neither supposition is correct.
On 29 October 1982, the Supreme Court gave judgment on the case and dismissed the appeal. In the course of delivering his judgement, which was agreed by the four other members of the court, the Chief Justice said.
"It can be said, therefore, that the Appellant although he absconded while on bail during his trial and although he remained, culpably, out of the country for 18 months following his conviction and sentence, has nevertheless been afforded on his return, every possible opportunity of establishing that he should not have been convicted and to this end has had his appeal fully argued, heard and considered, not only by the Court of Criminal Appeal, but also by this Court. It is seldom that the appellate jurisdiction of our Courts has been so fully exercised but it is proper that it should have been so in order to satisfy the requirements of justice".
I think it is important that I should make clear the position of the Minister for Justice. The Minister for Justice is not a court of appeal against court decisions.
The Minister is empowered by the Criminal Justice Act, 1951, to commute or remit in whole or in part the punishments imposed by courts exercising criminal jurisdiction — save capital punishment, where remission is reserved to the President. Exercise of that power in the case in question at this early stage in the serving of a long sentence could only be on the basis that the Minister rejected the findings of the courts, including the Supreme Court, as to the facts of the case or on the basis that evidence of facts not available to the court has materialised which would justify what would amount to a free pardon. It would be improper for me to act on the former basis and I have no reason to act on the latter.
Is the Minister concerned that a unique situation exists in this case whereby the two codefendants of Mr. Kelly were released by the courts during the time that Mr. Kelly was missing, having absconded while on bail, despite the fact that they had been charged on precisely the same evidence and in the exact same circumstances as Mr. Kelly was charged? Does this fact alone not warrant an immediate review of the continued imprisonment of Mr. Kelly?
(Limerick East): I am aware of the facts but I am aware also that after due process the Supreme Court found the person in question guilty and-sentenced him to 12 years' imprisonment.
The Minister tells us he is aware that there is a significant body of responsible individuals both inside this House and outside it who have expressed concern to him in relation to this case. In these circumstances would the Minister be prepared in the immediate future to receive a deputation from concerned individuals, to hear their views and, in the light of that, perhaps to review the case?
(Limerick East): There has not come to my attention anything that would enable me to involve myself in this case. It was taken through the Court of Criminal Appeal and to the Supreme Court. As the Deputy says, the co-accused of the gentleman in question were released. This was because the Court of Criminal Appeal held that the Special Criminal Court should have declared inadmissible their statements of admission. The difference in their case was that in one instance proper notetaking procedure was not followed while in the other the location of the questioning which led to the statements being made — an underground passage linking the Bridewell and the Four Courts — was oppressive. I have no information which would enable me to review the case as suggested by the Deputy.
The Minister may have overlooked one of the questions I put to him. If it should be the case that there is other evidence which is not available to him and having regard to a large amount of responsible opinion having approached him on the matter, would he be prepared to accept a deputation from the individuals concerned in the immediate future?
(Limerick East): As I said in my reply, I could only exercise the powers vested in me in relation to this sort of case on the basis that I rejected the findings of the courts, including the Supreme Court, as to the facts or on the basis that evidence of facts not available to the courts had since materialised and which would justify what would amount to a free pardon. However, I have no information whatever that there is any evidence of facts that were not available to the courts having materialised in the meantime but if the Deputy has any such information, he may communicate it to me.
Would the Minister concede that if this man had not broken bail he, too, would be free?
(Limerick East): I could not comment on that. A Minister for Justice may not give retrospective legal opinion.
It was suggested to me by way of representation by an organisation that this prisoner is quite ill and might be released on humanitarian grounds. Is there any basis for that suggestion?
(Limerick East): I have no information to that effect.