Garda scandal collapses Omagh case

Serious questions raised about the Special Criminal Court. By Vincent Browne

On the Wednesday after the Omagh bombing of Saturday, 15 August, 1998, the government issued a statement which said: "The Garda Síochána are making every possible effort to assist the British authorities to bring those responsible for this evil act to justice." The Omagh bomb killed 29 people and injured over 300 others.

The Government statement was a familiar response to an atrocity, echoing what had been said after the Dublin and Monaghan bombings of 17 May, 1974 and innumerable atrocities in the interim, including the murder of Veronica Guerin on 26 June, 1996.

The "every possible effort" of the Garda Síochána to bring those responsible for the Omagh bombing to justice resulted in the arrest, trial and conviction of only one person, Colm Murphy. He was convicted by the Special Criminal Court on 22 January, 2002 of conspiracy to cause an explosion and sentenced to 14 years imprisonment.

Almost exactly two years later, on Friday, 21 January last, Murphy's conviction was set aside and a retrial directed by the Court of Criminal Appeal. It means that nobody has been brought to justice for the Omagh atrocity but, more than that, the decision of the court on 21 January raises yet more questions about the integrity of the Garda Síochána.

The case against Murphy was based primarily on his alleged confession of guilt while under Garda interrogation. There was some corroborative evidence in the form of telephone records of calls made from his mobile phone and another mobile phone borrowed by him, which located the phones traveling in the direction of Omagh and then away from Omagh, in the times immediately before and immediately after the explosion. But this was merely corroborative of the alleged admissions.

Following his arrest on 21 February, 1999, Murphy was detained at Monaghan Garda station for three successive periods of 24 hours. During that time he was interrogated by two teams of detectives, one being Detective Garda Donnelly and Detective Garda Fahy, the other team comprising Detective Garda McGrath and Detective Garda Hanley. A third team did some interrogation on the first day of Murphy's detention but was then assigned to other duties.

In the course of interrogation by these two teams of detectives, it is claimed, Murphy made admissions about involvement in the Omagh bombing; that he had lent his own mobile phone and a mobile phone he had obtained from an employee in his construction business, Patrick Morgan, to Seamus Daly, who was described in the Special Criminal Court, during the trial of Murphy, as a "dissident republican terrorist".

Murphy at all times denied making the admissions ascribed to him by the two teams of detectives. In the preparation of his defence the interview notes of the two teams of detectives were examined by a forensic expert.

This forensic examination revealed that a page of the notes of an interview with Murphy conducted by Detective Garda Donnelly and Detective Garda Fahy was re-written after the interview.

The relevant section of the notes, as produced in direct evidence to the court was as follows:

Garda Fahy: "Colm, could your wife have taken your mobile phone to Omagh?

Colm Murphy: Definitely not.

GF: Getting back to the phones Colm, the matter will have to be clarified. You've a big problem here.

Garda Donnelly: We'll take a break now Colm. Think about it."

However the scientific evidence established that what had originally been written was the following:

GF: "Colm, could your wife have taken your mobile phone to Omagh?

CM: Definitely not.

GF: She's Sheila Grew's sister, isn't (word indecipherable).

CM: That's right.

GF: Getting back to the phones Colm, the matter will have to be clarified. You've a big problem here.

GD: We'll take a break now Colm. Think about it."

The problem with the change in the supposed transcript of the interview was that Shelia Grew was not the sister of Murphy's wife and the question arose: Why would Murphy say she was? In the words of Michael O'Higgins SC, counsel for Murphy, there had to be an inescapable inference that Murphy never said any such thing, that the question and answer were concocted by the two officers, who, on discovering the error, set about altering the interview notes.

This discovery led the Special Criminal Court in the original trial to disregard entirely the evidence of Detective Garda Donnelly and Detective Garda Fahy. But the Court went on from this discovery to conclude that it did not taint the evidence of the other team of gardaí.

However, the Court of Criminal Appeal on 21 January last found: "We are satisfied that the alteration to the notes of one of the interviews in this case was of a nature as to raise an issue or question as to the extent to which other (Garda) officers might or might not have been involved to some degree in collusion, at least to the extent of correcting the initial error and facilitating the filing of an amended third page in the material section of notes we have identified."

It wasn't that the Special Criminal Court should not or could not have convicted Colm Murphy on the basis of the evidence of the other team of gardaí, Detective Garda McGrath and Detective Garda Hanley, rather that it failed to apply that extra critical analysis to their evidence that was warranted following the discovery of the fabrication by the other team.

There was a further difficulty. The Court of Criminal Appeal said the Special Criminal Court in the original trial also failed to access the impact on the credibility of Detective Garda Hanley's evidence of criticisms made of him by the Special Criminal Court in one of the Veronica Guerin cases, the DPP v John Gilligan.

The prosecution contention that John Gilligan was responsible for the murder of Veronica Guerin was based on the evidence of accomplices of Gilligan, Charles Bowden and Russell Warren. In that (Gilligan) case the Special Criminal Court had said:

"The Court is, however, concerned that Detective Garda James B Hanley, who, despite his own protestations, was established in the eyes of the Court to have been a significant member of the team, who was involved in the investigation of the events which gave rise to the charges against this accused, amongst others, conceded in evidence that he kept no record whatsoever of several meetings which he had, in the course of his investigations, with the witnesses Charles Bowden and Russell Warren and this omission is all the more to be regretted because of suggestions by the defence that certain aspects of formal statements made by Messrs Bowden and Warren which varied previous statements made by them had been provoked or induced by Detective Garda Hanley in the course of such meetings."

In the Colm Murphy case, the Court of Criminal Appeal also made very critical observations about the Special Criminal Court in the original case. Aside from the observations that the Special Criminal Court had failed to apply the requisite degree of critical analysis to the testimony of Detective Garda McGrath and Detective Garda Hanley, and had failed to access adequately the credibility of Detective Garda Hanley's evidence, it also stated that the Special Criminal Court had made findings "based on speculation and not on evidence". In addition, the Court of Criminal Appeal made what might be considered a devastating critique of the Special Criminal Court in the following comment relating to its consideration of the prior convictions of Murphy:

"To have regard to previous convictions in respect of which no admissible evidence was tendered and where no grounds for doing so were established can only be seen as a significant erosion of the presumption of innocence, whether couched in terms which go to corroboration or in terms which suggest that previous convictions are probative in some way of the guilt of an accused person in relation to a specific offence.

"While this was not a jury trial, where the risk of prejudice would be glaringly obvious, it is impossible to avoid the conclusion that the previous convictions and bad character of the accused (as so found by the court) formed a significant element in the court's decision to convict."p