Free Nicky Kelly

Nicky Kelly, of Arklow, Co. Wicklow, is currently serving a 12-year jail sentence in Portlaoise prison for an offence he did not commit, the Sallins mail train robbbery in March 1976. He is likely to go on hunger strike in prison within the next few weeks in protest against his conviction and, given his current mental state, he is very likely to at least do himself very considerable damage, if not actually starve himself to death.

We hope to be able to publish in Magill within the next few months, proof of Kelly's innocence by showing how a group with which he was not associated were responsible for the robbery, but at this stage we wish to highlight some of the disquieting features of the police enquiry and the judicial conduct of the case.

We have published on a number of previous occasions the evidence of Garda ill-treatment which Kelly and his coodefendants, Osgur Breathnach and Brian McNally allegedly suffered. Nicky Kelly's own version, given in evidence, of what happened him in Garda custody is as follows. We have deleted the names of the Gardai from his account.

"(Garda A) rammed my head off the locker door. Some of the Brits treatment. Spreadeagled. Jabbed in ribs, slappped 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. Comer of cell. Toilet. Grabbed by hair. 'Tomorrow - long day'. Shoved head 5 - 6 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. 5 minutes. there. (Garda A): 'eventually you'll talk'.

"(Garda A) hit (me) back of ears after wrong answers. Telephone ears 10 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 backeards. Chair put on palms. (Garda A) sits on chair. Spits on face. Leerring. 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 blackkjack. Beaten by (Garda E) on biceps. Left on table. Black lathe 10 inches long, 1 inch in diameter. Flexible, Swish noise. 'Own up, make statement '. Beaten above the knee ... "

Dr. Sean 0 Cleirigh, an independent doctor, examined Kelly in Mountjoy hours after this ordeal and gave the following evidence in court. He feundextensive bruising on Kelly's outer arms from the shoulder to the elbow. There were also bruises over the left shoulder blade, over the ribs, over the pubic bone and on his left hip and thigh. He found extensive bruising over the mastoid bone of the left ear, which itself was also bruised. The ear area was also slightly bruised. All of these bruises were tender. He said Kelly was very apprehensive at the time.

Dr. Samuel Davis, the medical officer at Mountjoy priison, examined Kelly the following day. He said in evidence that he found extensive bruising on the left shoulder and scapula ... there was extensive bruising on the upper arm. The left arm was completely bruised on the outer side ... there was a circular bruising on the lateral, or outer surface, of the left forearm and there was circular bruising about 2 inches in circumference about the wrist on the inner surrface ... he found two superficial injuries about an inch in size, over the pectoral area, slightly above the left nipple. Kelly ltad a large superficial bruise on the outer surface of the right upper arrn , measuring 7 inches by 7 inches and continuing into the back of the right shoulder. There were bruises on both buttocks and also behind the left ear. There was bruising as well on the front and back of the left thigh.

In spite of this persuasive evidence of Gardai ill-treatment a statement made by Kelly, while in custody, was held by the Special Criminal Court to have been made voluntariily. The court accepted Garda evidence that there had been no ill-treatment of any of the defendants and insinuated that any injuries they received must have been self-inflicted. On the basis of a statement made by Kelly while in Garda custody and on that evidence alone Kelly was convicted of charges in connection with robbery and sentenced to 12 years penal servitude.

The Special Criminal Court's acceptance of-Garda assuurances that statements were given voluntarily, when there is substantial evidence to show that there was a considerable degree of coercive pressure involved is not unusual. It is one of the major defects of that court and, to a large extent, an inevitable defect - for the repeated exposure of Jusstices to Garda evidence versus "subversive" claims condiitions the members of the court in favour of the Gardai.

However that the Court of Criminal Appeal should connsistently refuse to look behind the decision of the Special Criminal Court on such matters is a matter for considerable disquiet, for it means that there is effectively no check on the Special Criminal Court's inevitably prejudiced predissposition towards the Gardai.

Kelly's two co-defendants, Breathnach and McNally, were discharged on appeal on technical grounds. By that time Kelly had absconded to Canada. He had jumped bail before the verdict in the Special Criminal Court. However, once his co-defendants were acquitted by the Court of Criiminal Appeal he returned to Ireland and gave himself up to the Gardai. He was immediately imprisoned in Portlaoise and he had considerable difficulty in winning a right to appeal his conviction, not having lodged his appeal within the statutory period.

Then his appeal was turned down by the Court of Criiminal Appeal - the technical grounds for his appeal differred from those in the cases of Breathnach and McNally 0and he was returned to Portlaoise. The Appeal Court have allowed an appeal to the Supreme Court on a technicality but it will be possible there to argue the point whether the Appeal Court should examine the basis for the admission of statements in evidence - the point at the heart of the Kelly case, which was entirely ruled out of contention by established practice by the Court of Criminal Appeal.

The entire Sallins robbery case had proved to be a major national scandal - at one point Gerry Collins, then spokesperson on Justice for Fianna Fail, demanded an ennquiry into the actions of the Gardai in the case but when he became Minister he not alone didn't institute an enquiry but promoted several Gardai who were prominent in the affair.

The incident took place at the height of the Coalition's hysteria about law and order - a time when the Gardai would have been most encouraged to believe that the authorities would stand behind them in whatever they did to stamp out "subversive crime".

As stated above the handling by the Special Criminal Court of the case was less than satisfactory and the Court of Criminal Appeal has proved entirely unprepared to deal with the issues which the court throws up.

At the end of it all Nicky Kelly is in Portlaoise doing a 12-year jail sentence. Apart from the material fact that he is entirely innocent, there is the point that the processes whereby he has ended up serving this sentence have proved entirely unsatisfactory. There is only one correct course of action now: Release Nicky Kelly and then institute an ennquiry in to the entire background to the case. Vincent Browne