Editorial: Free Nicky Kelly

In his judgement on the Nicky Kelly appeal in the Supreme Court on Friday, October 29, the Chief Justice, Tom O'Higgins, said: "It is seldom that the appelate 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." While Tom O'Higgins is deserving of respect not just because of his position but because of the distinction he has brought to the role as chief justice, the comment could hardly have won commendation from anyone who has followed the Nicky Kelly case.

The basic defect with the appelate jurisdiction has been the refusal of the Court of Criminal Appeal, now supported by the Supreme Court, to enquire again into the findings of fact established by the Special Criminal Court - to wit, in this case: that the injuries which Kelly clearly suffered were not caused by Gardai during his interrogation which led to his self-incriminating statement.

It may be good in law for appeal courts to decline to enquire into findings of facts of lower courts, given that the appeal court is satisfied that the lower court adhered to fair and proper procedure. But in the case of the Special Criminal Court it is not good enough. The Special Court demands special appeal procedures and these should include the re-examination of all the facts of the case, especially when a case rests on self-incriminatory statements made by an accused person in circumstances in which there are prima facie grounds for believing that the statements were not voluntary because of physical or mental intimidation by the interrogating officers.

This was abundantly so in the case of Nicky Kelly. Two doctors testified to finding bruises and lacerations on his body following his release from Garda custody and Kelly himself gave a graphic and horrifying description of what more than 20 Garda officers did to him while in custody. The Special Criminal Court, given its orientation and the pattern of cases coming before it, inevitably becomes impatient with allegations of Garda brutality - the Gardai are inevitably seen by the courts as colleagues in the war against terrorism. Unavoidably, the perspective of the court becomes askew and there should be built into the judicial system a proper and comprehensive appeal procedure that deals with all the facts of the case from the beginning. Nicky Kelly is the most prominent victim at present of the inadequacy of the current procedure. The Taoiseach and the Minister for Justice should now intervene and free him.