Concern for Nicky Kelly

In 1976 at the request of relatives of persons held under the Offences Against the State Act, I was involved in monitoring allegations of maltreatment of those in custody. Having failed to obtain the interest of officialdom at the time I submitted a dossier of cases to Amnesty International and other human rights organisations. One of the cases was that of Nicky Kelly whose judicial appeal to the Supreme court against his conviction was turned down last week. Kelly is known to be an innocent man.

He was sentenced in questionable circumstances. Neither he nor his co-accused (now released) belonged to the organisation that admitted responsibility for the crime for which they were charged.

Amnesty International know the case very well. They are worried that Kelly could be convicted solely on a statement made in police custody. They sent a team of investigators to Dublin in June '77 - a year after Kelly was first arrested - to investigate many allegations of ill-treatment. Their subsequent report found "consistent and substantiated evidence of maltreatment in order to extract from arrested persons incriminating statements of confessions". The report also expressed concern which was critical of Special Criminal Court procedures.

The Government rejected Amnesty's findings, refused to set up an independent inquiry as Amnesty requested and appointed instead a three man "Safeguards" committee under the chairmanship of Judge Barra 0 Briain and including Ruaidhri Roberts, ICTU, and Patrick Malone, the former Garda Commissioner. The Government appointed committee (initiated on 6th October '77) immediately decided that its terms of reference specifically required it to relate to a dossier supplied by me as well as the allegations contained in the Amnesty Report which had been sent to the Taoiseach on August 26th. My own dossier specifically referred to Kelly's arrest in April '76 and contained a three page affidavit with regard to his physical and mental torture while being interrogated.

The Safeguards Committee's recommendations were completed within six months. They were hailed by the media, some seeing in them a telling indictment of Garda behaviour even though the committee had no power or function to pass judgement on the allegations. But the Government chose to reject in whole or in part the major recommendations of the committee.

In the meantime the Sallins Train Robbery trial had begun in the Special Criminal Court. During the trial in the non-jury court Nicky Kelly and his co-accused, Oscur Breathnach and Bernard McNally, made strong accusations of brutality at the hands of 13 detectives and a detective Inspector. Their claims were backed up with impressive medical evidence. Their statements to the Gardai were extracted under pressure they claimed. The court found in favour of the police who held that the injuries sustained were self inflicted.

Nicky Kelly suffered most from the after-effects of his treatment in custody and in a state of anxiety neuroses he absconded while on bail some days before the end of the trial. In December '78 Breathnach was sentenced to 12 years, McNally to nine years while Kelly was sentenced to 12 years in absentia. However, seventeen months later Breathnach and McNally were freed by the Court of Criminal appeal which ruled that the statements providing the basis for their conviction should never have been admitted as evidence. Nicky Kelly then returned from the US, to where he had earlier fled and gave himself up in the hope of clearing his name. On October 29 last the Supreme Court rejected his appeal however and returned him to prison to serve his twelve years for a crime he did not do.

The immense cost to the State of the whole fiasco was over £ 1 million. There are costs that far outweigh the strictly financial side however. Serious questions abide concerning the area of Gardai interrogation, protection of suspects and the attitude of the courts to defendants who allege to have been illtreated in order to force them to make incriminating statements. But the most important thing of all at this point and time is that a completely innocent man is languishing in prison. We ought to have concern for his plight and the plight of his family. It may not be a popular crusade for the politician but the responsibility lies with all to press for his immediate release. Under the circumstances, on humanitarian grounds, President Hillery might do so if no other way can be found.