The Seeds of a Police State
There is substantial evidence that a major crime was perpetrated within the Garda Siochana five years ago. The evidence for this crime has certainly been available to senior Gardai ever since then, but no enquiry whatsoever has taken place, let alone any Garda being diciplined in connection with that crime.
Furthermore, no agency, such as the Department of Justice, has undertaken any investigation of this crime and at least one Minister for Justice, Gerry Collins, baulked at the opportunity to institute a formal investigation into what occurred, even though he had earlier called for such an investigation. The failure to hold an enquiry into the very persuasive prima facie evidence of this criminal conspiracy is made all the more significant by the subsequent promotion of a great number of Gardai involved in the case, although it would be quite wrong to suggest that those Gardai who we later name as having both been involved and promoted were individually guilty of any wrongdoing.
The crime in question concerns a conspiracy to subvert the course of justice and this involved a significant number of Gardai being involved in a plot to commit perjury.
This all was in relation to the by now notorious Sailins mail train robbery, which occurred on March 31, 1976 and the subsequent trial of three people, Osgur Breathnach, Brian McNally and Nicky Kelly in connection with that robbery .
While the case inevitably relates to allegations of Garda brutality against persons held in Garda custody, it is not the kernel of the case presented here. We do go into some detail to show that the Gardai did ill-treat Breathnach, McNally and Kelly but our point is not to prove that the Gardai were guilty of ill-treatment, it is not even to show that the convictions of all three by the Special Criminal Court was mistaken or even that the subsequent failure of Nicky Kelly's appeals to the Court of Criminal Appeal and the Supreme Court were mistaken.
The purpose of this present article is to show that as there was overwhelming evidence that the Gardai did in fact ill-treat the three accused, of the 82 Gardai who gave evidence in the trial a significant number of these perjured themselves, as they must have known what was going on. Furthermore we are attempting to show that there is substantial evidence of a great deal of collusion between individual Gardai in the presentation of their evidence, notably in their statements in the Book of Evidence and that this suggests strongly that there was in fact a conspiracy among some Gardai to commit perjury - i.e. to subvert the course of justice.
We further seek to show that at no stage did the Gardai or any other authority attempt to investigate these matters, in spite of the persuasive nature of the evidence involved. And then that recommendations to ensure that these abuses could not happen again have been entirely ignored by successive Governments.
The case raises the most serious questions about the character of the Garda Siochana, especially the failure to hold any investigation into the affair.
Of course there are serious inferences in respect of the courts - the Special Criminal Court, the Court of Criminal Appeal and even the Supreme Court - as well. All these courts failed to come to grips with essential evidence in the case, notably the extraordinary circumstances whereby the accused persons were remanded into Garda custody having been charged in the District Court on the evening of April 7, 1976 - it was that remand which created the scenario whereby the Gardai could claim that the injuries suffered by the accused were mutually inflicted.
But the purpose of this article is not to examine the conduct of the judicial system in relation to this case, it is to examine the conduct of the Gardai. This examination requires an exhaustive presentation of the background and evidence in the case and we start with the stories of the three accused persons - Osgur Breathnach, Brian McNally and Nicky Kelly.
The Story of the Arrests
On the 5th, 6th, and 7th days of April, 1976, there were in excess of twenty persons arrested under Section 30 of the Offences Against the State Act, 1939, in connection with the robbery of the Sallins mail train which had taken place on the 31st of March. The arrests were made in Dublin, Cork, Wicklow, Limerick, and Carlow.
Among those subsequentIy charged with conspiracy to commit armed robbery and with actual robbery of the mails from the Cork/Dublin train on the morning of the 31 st of March, 1976, were Osgur Breathnach, Brian McNally, Michael Plunkett, John Fitzpatrick, Michael Barrett, and Nicky Kelly. Four of the accused signed statements whilst in police custody, incriminating themselves in the robbery: Breathnach, McNally, Fitzpatrick, and Kelly. They alleged that the statements, amounting to confessions, were signed in order to stop beatings they were receiving at the hands of the police.
All six charged were discharged by Justice 0 h Uadhaigh the following December, because of the failure of the prosecution to produce a book of evidence against the accused.
Subsequently, new charges were preferred against four of the original accused. Fitzpatrick and Barrett were not charged, even though Fitzpatrick had signed a statement incriminating himself in the robbery, which meant that there was precisely the same evidence against him as there was against Nicky Kelly and Osgur Breathnach. No reason was ever offered for this, and Fitzpatrick was never called as a witness to confirm or deny allegations that it was he who beat up McNally on the Wednesday night of the crucial remand from a special sitting of the District Court, back into Garda custody.
The trial of the four was aborted on the fiftieth day on the death of one of the Judges, Judge John William O'Connor. A new trial was set, and in the first few days of this new trial, Michael Plunkett was acquitted. Breathnach, McNally, and Kelly were found guilty and sentenced on December 13,1978. Upon appeal, Breathnach and McNally had their convictions quashed on May 20, 1980. Nicky Kelly was unsuccessful in his appeals to both the Court of Criminal Appeal and the Supreme Court. He is still in jail, serving a 12 year seatence.
The Case of Osgur Breathnach
Osgur Breathnach under Section 30 of the Offences Against the State Act, 1939, at 3.15pm on the 31st March, 1976. He was taken to the Bridewell where his detention order was extended and he was released at 2.45pm on Friday, the 2nd of April, 1976. He had spent 471/2 hours in police custody. He was arrested again under Section 30 at 1.30pm on Monday, the 5th of April, 1976, and taken to the Bridewell, where his detention order was again extended, and he was released at 1.30pm on Wednesday, the 7th of April, 1976. A total of 48 hours in police custody. It was during the latter part of his detention that he alleges he was beaten and forced to sign a statement, incriminating himself in the Sallins mail train robbery.
Upon his second release, he was again arrested under Section 30, and was detained until he was taken to the Richmond Hospital, following a High Court Habeas Corpus application. The following day, he was arrested at common law. The Court of Criminal Appeal quashed Breathnach's conviction and ruled that his statements were inadmissible in evidence because of his having been brought to a "menacing environment", a tunnel in the Bridewell during his second period in detention, in the early hours of the morning, for an interview, and failure to vindicate his right of access to a solicitor.
Upon his second arrest under Section 30, Osgur Breathnach was taken to the Bridewell Garda Station and placed in a cell. After 40 hours in detention, at approx. 5.20am on the Wednesday morning, he was taken down into a tunnel leading to the District Court, and interviewed by Detective Garda Fitzgerald and Detective Inspector John Murphy. Breathnach alleged in evidence that he was questioned in this tunnel, and that he refused to answer questions without a solicitor. He alleged also that Detective Garda Thomas Fitzgerald and Detective Inspector John Murphy attempted to pull his coat off, that he was slapped, punched, kneed, banged against a wall, that his arms were held, and that he was shouted at. He alleged further that his alleged part in the robbery was being repeated over and over again to him.
When he was taken back upstairs, he alleged that Detective Garda Fitzgerald and Detective Inspector Murphy pulled a chair from under him causing him to fall to the ground, and that he was pulled from one detective to another, that he was by this time dizzy, sore all over, confused, and had difficulty in breathing. He also alleged that he was beaten by other detectives whom he could not identify, that the statement he signed was not his own, but concocted by the Gardai, and that he was forced to sign it in order to avoid further beatings. The time on his statement is 6.00am on Wednesday, April 7 - he had been in custody 41 hours at the time of his making a "confession".
Dr. Noel Smith, who had been the Breathnach family doctor for some years, was asked by relatives to go to the Four Courts to examine Osgur Breathnach prior to the Habeas Corpus application on the afternoon of Wednesday, April 7. He examined Breathnach at 5.15pm that evening, just under 12 hours after the self-incriminatory statement had been signed. Dr. Smith said in evidence tha t Breathnach's head was painful and tender and that he had a lump on it, that his left leg had bruises over the top lower third, lateral. to the side and back. That there were the early stages of bruising on Breathnach's buttocks. In Smith's opinion, Breathnach was dangerously ill, suffering from concussion as a result of the head injury and suffering from other injuries which could not have been self inflicted. As a result of an application to the High Court, Breathnach was removed to the Richmond Hospital.
Breathnach was examined by Dr Leech of the Richmond Hospital on his arrival at the hospital on the Wednesday afternoon April 7th. Dr Leech said in evidence that he found Breathnach to be in an anxious condition, that there was a small bruise on the left hand side of the chest, a small bruise on the inside left ankle, bruises over the lower one third of the leg, and tenderness over the triceps of the left arm. He said the injuries which he found were consistent with an assault of minor degree.
Dr Carey, a senior neuro-surgeon at the Richmond Hospital, who examined Breathnach on Thursday morning, April 8th, said in evidence that he found no injury to the accused's head, no evidence of loss of consciousness, no evidence of external injury to the head or neck. There was tenderness of the scalp, on the left side of the jaw, and bruising on the left arm, left chest, back of the right calf and on the left ankle. The bruisings on the arms was stated by Dr Carey to be consistent with a punch, behind the right leg would be consistent with a kick or a knock. Breathnach was discharged from hospital later that day, April 8th.
Thus while the medical evidence on Breathnach's condition was inconsistent (although the doctors concerned insisted their evidence was not contradictory), there was nonetheless considerable medical evidence that Breathnach was suffering from injuries of some kind. At no stage throughout the trial was there any evidence to the effect that Breathnach could at any stage have inflicted these injuries on himself or have had these injuries inflicted, other than at the hands of the Gardai.
Non-medical evidence about Breathnach's condition was even more compelling. Aidan Browne S.C., who saw Breathnach in the High Court before the Habeas Corpus application said in evidence: "To me, he appeared to be somebody else - as distressed as anyone I have ever seen and to a degree that was frightening as far as I was concerned ... It was an overall impression of somebody who was dehumanised, that the attributes of the human animal that distinguishes him from the non-human animal were missing from him ... one other person that I had seen in custody, not in this jurisdiction, in Crumlin Road Jail where he had been lodged after sustaining seven or eight days of interrogation ... that was the parallel between the two persons that I made at the time." While Brown's evidence was made to appear unspecific and vague under cross examination, his testimony was nonetheless powerful.
Mr Dudley Potter, solicitor, also giving evidence at Osgur Breathnach's trial, said he saw the accused at twelve midday on the 7th of April, 1976, and that there were marks and bruises on his body and that he appeared to be in a very distressed state. Taken all in all therefore, the evidence in Breathnach's case was not just sufficient as to raise a reasonable doubt about the voluntary nature of his confession. The evidence was such as to suggest that inall probability he had in fact been beaten up.
The Case of Brian McNally
Brian McNally was arrested under the Offences Against the State Act, 1939 ,at 7.l0am on the Monday morning of April the 5th, 1976. He was taken to Fitzgibbon Street Garda Station and shortly afterwards, he alleged in evidence, he was struck on the cheek by Detective Garda Thomas Dunne, and also shouted at by him. He said he was assaulted by Detective Garda Kieran P. Lawlor, who is alleged to have beaten him on the right cheek bone, the lip, the ribs and the chest.
McNally claimed also that he had been deprived of tablets which had been prescribed for him. He was questioned at intervals throughout the day, and alleged that by midnight he was fatigued and unsure of himself as a result of being deprived of such tablets. He was then brought to the Bridewell Garda Station.
His questioning resumed at 10.00am the following morning and lasted until 6.00pm, when he was put to his cell fClr tea. At 830pm, he was taken out to an interview room where he was interviewed until 9.l5pm. McNally alleged that during this interview he was sitting on a double seat with Detective Garda Felix McKenna, that when he lit a cigarette, it was knocked out of his mouth by Detective Garda Thomas FitzGerald, that Detective Garda McKenna stood up suddenly and that he (McNally), fell to the floor, that he was picked up by Detective Garda McKenna and pushed towards Detective Garda Fitzgerald who slapped and pushed him and he fell back on the seat.
McNally further alleged that during the period when he was being inte'rviewed between 11.45 and I.00am on the Wednesday morning, that the dQm of the interview room was burst wide open and that four or five plain clothes detectives came in, one of whom he identified as Detective Garda Joseph Egan. He said that he was made to stand, that he was called a "Northern bastard", was slapped across the face with the back of the hand; was pushed from one Garda to another; was struck by Detective Sergeant Patrick Culhane; had his shirt torn, the wing of his glasses broken; and that he lost consciousness.
He also said he was lying on the floor and that he heard screams and that Detective Garda Michael Finn came into the room, in the company of another member of the Garda Siochana whom he couldn't identify. He said he was caught by the shoulders and kneed in the stomach, pushed around, hit on the head and the left eye, pushed against the table and beaten on the shoulders, lips, ribs, back and shoulder blades and between the legs with a black jack.
He said he was punched on the head and eye and that he was crying and screaming like a child. He said that he had to be helped off the floor to go to the toilet. He denied in court making any statement, and he alleged that the statement was already written out and that when he refused to sign it, he was threatened with the blackjack again and therefore did so sign it in order to avoid a further beating, at 7.00am on the Wednesday morning.
McNally was convicted by the Special Criminal Court but the Court of Criminal Appeal held that the court of trial had been wrong in admitting in evidence alleged verbal admissions, as no note had been made by the Gardai concerned of these alleged admissions, and therefore McNally had not had an opportunity to read over such note, or an opportunity to amend same, or to sign it.
Solicitor Pat McCartan who was acting for McNally and also Kelly asked Dr. Sean 0 Cleirigh and Dr. Sean Magee to examine McNally when he was transferred to Mountjoy he asked both doctors to attend to ensure that at least one of them would be available. Dr. 0 Cleirigh made the examination on the evening of Thursday, April 8 at around 7.30pm, some 36 hours after McNally had signed the self-incriminating statement.
Dr O'Cleirigh said in evidence that he found marks over McNally's left shoulder, consisting of a mixture of bruising, scratching and excoriation, approx. 2 "x4", and similar type marks below the left buttock. He found more bruising at the back of the right leg and right thigh, 6"x2", a similar mark below the right knee, 4", and two red scratch lines. There was a reddening of the skin over an area of 4" below the left knee and calf and there was swelling and discolouration of the left eye. The left ear was swollen and inflamed and there was an abrasion of about a quarter of an inch on the front of the middle ear.
In addition, Dr 0 Cleirigh stated that he found all movements of the neck, left wrist, and little finger of the left hand painful, and that there was a marked tenderness all over his body, especially at the lower ribs, and that the injuries were of a type consistent with the beatings that McNally had described to him.
Dr Magee, who also examined McNally, gave evidence at the trial, corroborating that already given by Dr 0 Cleirigh. Thus in McNally's case there was consistent medical evidence of the fact that he was suffering from injuries by the time he got to Mountjoy on the evening of April 8th. The Garda and the state's response to this evidence was to suggest that McNally had been beaten up either by himself or by a cell•mate in the Bridewell on the night of April 7th.
We will be examining below the extraordinary circumstances whereby McNally and the others came to be in Garda custody in the Bridewell that night.
The Case of Nicky Kelly
Edward Noel (Nicky) Kelly was arrested under Section 30 of the Offences Against the State Act, 1939, at Arklow, at 10.00am on the Monday morning of the 5th of April, 1976, and brought soon afterwards to Fitzgibbon Street Garda Station.
He said in evidence that repeated requests for legal counsel were ignored and alleged the first assault took place around midday when Detective Garda Thomas Ibar Dunne turned him round by the shoulders against his will in the presence of Detective Sergeant Francis Campbell and that he was shouted at by Dunne.
Later on, he said, Dunne slapped him about the face and ears, shouting at him all the time, and that Dunne sprinkled holy water on him. Kelly said that Detective Garda Michael Finn entered the room, slapped him, and asked him if he was ready to make a statement. Further, Finn made him stand up and sit down on a chair repeatedly, and then pulled the chair from under him, causing him to fall to the ground.
Kelly alleged that the next assault occurred when Detective Garda Dunne punched him on the arms. Detective Garda Finn was the next to assault him by ramming his head off a locker, whilst Detective Garda William Maher was present also. Together, the Gardai shouted at him to "own up", he said. He claimed they then "spreadeagled" him against a wall and kicked his legs apart, causing him to fall to the ground. They jabbed him in the ribs when they were doing this. Dunne is alleged to have cursed throughout.
The last alleged assault on the Monday was when Detective Garda Finn brought Kelly up to a cell and shoved his head into a toilet bowl five or six times. Kelly was taken to the Bridewell Garda Station at approx. 1.00am on the Tuesday morning, where he rested the night in his cell.
On Tuesday morning, April 6th, Kelly said Detective Garda Dunne shook him and that Detective Garda Maher pushed him about and that, later on, Detective Garda Lawlor and Detective Garda Boland pushed him from one to the other, and shouted at him. At one stage, Kelly fell to the floor, and he alleged that Detective Garda Boland hit him with a chair. Further, that Detective Garda Lawlor and Detective Garda Boland punched him on the arms and slapped him on the upper body.
After lunch, Kelly alleged, that Detective Garda Finn was responsible for him falling off a seat and stood behind him asking questions, slapping him on the ears when he gave "unsatisfactory answers". By late afternoon, Kelly alleged that Detective Garda Dunne punched him on the arms and suggested to him roles that he played in the robbery.
Between the hours of 9.00pm on the Tuesday and 530am on the Wednesday, Kelly underwent continuous questioning during which time he alleged that he was shouted at by Detective Garda Dunne and punched repeatedly on the arms by him, and that he was also beaten by a number of detectives whom he couldn't identify.
Detective Garda Michael Finn and Detective Sergeant Patrick F. Cleary were accused by Kelly of beating him on three separate occasions with a black jack. He alleged he was beaten under the arms and from the legs to the knees, that he was being punched and shouted at to sign a statement. He also alleged that Detective Garda Finn threatened to break his nose .
On the third occasion when he alleged he was beaten with the black jack by Detective Sergeant Cleary, a statement had already been written out, and it was his refusal to sign it which brought on the third, and accordi.ng to Kelly, the worst of the beatings with the black jack.
He also alleged that during this period Detective Garda Egan slapped and punched him about the arms, ears, and face, and that Detective Sergeant Culhane shouted and roared at him, and that Culhane punched him, causing him to fall to the ground. After the third beating with the black jack, Kelly said he signed a statement at 5 .I Sam in order to stop further beatings.
Dr Sean O'Cleirigh, the independent medical witness, examined Kelly at Mountjoy Jail at 730pm on Thursday, the 8th of April, 1976. Dr O'Cleirigh said in evidence:
"He had bruising over the left arm covering approximately the upper three quarters of the left arm and he had a similar type of'bruising over approx. the middle twothirds of the right arm. From the tip of the shoulders to about three-quarters way down the arm. There was also a large area of bruising, I call it ecchemosis, that was an area approx. six inches over the left shoulder, at the back of the left shoulder on the back of the trunk .... "
Dr O'Cleirigh said there was discolouration over the arms - "a blue black discolouration". He said "the whole area was blue black. Over the back, there were areas where the discolouration was much fainter. He also had bruising over both buttocks.
"I want to describe the area where it was: it was below the crest of the ilIium, the crest of the ilIium is what we would normally call the hips: the upper crest of the pelvic bone - and this extended down for about two inches. It was right across the back. I called it a linear bruising because there were little lines through it. It was a slatey blue colour.
Over the left thigh, there was an area of slight bruising: the discolouration was very slight; and this was approximately two inches by four inches. It extended from the tuborsity - the prominence aat the top of the hip bone ... the tuborsity to the femor - the bone between the hip joint and the knee - and this was tender. By what I mean, when I palpitated it, there was pain present. It was roughly triangular in shape. The base was roughly two inches and the sides were roughly four inches."There was a similar type of bruising between the middle and the lower third of the thigh. That is about twothirds of the way between the hip joint and the knee joint. The left thigh. This was approx. two inches in diameter.
"There were also two small bruises on the front of the body. One just below the breat bone - the sternum - one about an inch below the sternum; and the other about three inches above and one inch outside the line of the left nipple. They would have been at most one inch in diameter. They were small bruises. He had extensive bruising of the left ear itself and behind the left ear. In other words, the discolouration extended from the ear itself. It extended for a couple of inches but it also extended down below the level of the ear. There was discolouration behind the right ear. It was a light brown - I describe it as 'browning' ... "
Referring again to the left ear, Dr 0 Cleirigh said: "I discovered that there was a swelling there and there was some discolouration there and it was tender. He was in a state of very acute anxiety ... I have quite a clear recollection of Kelly being particularly stressful."
Dr 0 Cleirigh was further questioned by Mr Sorohan SC. Those various injuries present - matters that you noticed - distressful state; what were all those matters consistent with in your opinion as a doctor?
Dr 0 Cleirigh: They were consistent with beating of the type which he had described to me.
Dr 0 Cleirigh further put the ages of the bruisings found at one to three days.
His evidence was corroborated by Dr Magee, who also examined Kelly at the same time.
The Remand: The Case Gets Curiouser and Curiouser
There are circumstances in which accused persons are placed in Garda custody after being charged in the District Court but these circumstances are very unusual, especially in the
Dublin area. The reasons generally relate to the lateness of the hour at which the charges are made and the distance from a prison. Thus if a person is charged with an offence in a remote area and remanded in custody either by a District Justice or by a Justice of the Peace, then they may be held in Garda custody overnight, pending their removal to a prison the following morning. But this is rarely necessary in the Dublin area. In any event the extraordinary procedure was taken in this case of specifically getting a remand into the custody of two named Gardai - this procedure is virtually unheard of, although provided for under Section 25 of the Criminal Procedures Act 1967.
In fact during the course of the Sallins trial the issue arose during the cross examination of the station sergeant of the Bridewell who was on duty on the night of April 7, 1976. He, Sergeant Padden,.admitted that he could not recall any other case in which an accused person had been remanded into Garda custody.
One of the senior Garda officers involved in the case, Detective Inspector Ned Ryan was unable to explain during the course of the trial why the remand into Garda custody had occurred at all.
Magill asked the Department of Justice if there had been any other such cases of a remand from the District Court to Garda custody. The Department referred us to the Garda press office. At first we were informed by Sergeant Jim Quinn of the press office that "adult prisoners are never remanded back into Garda custody. We can't hold a prisoner for longer than is absolutely necessary," he said. "If we have occasion to interview a prisoner further, then we go into the prison to see him."
That seemed unambiguous. But then three days later another official of the Garda press office, Breege Wymes, went to considerable pains to make contact with Magill to offer additional unsolicited comment. She maintained that remands into Garda custody were commonplace - it happened every day, she said.
We contacted Sergeant Jim Quinn again and asked for clarification as to the point at issue and for an explanation as to why we should be told such contradictory stories. He reverted to us following enquiries and explained that remand into Garda custody did take place in the circumstances outlined above (i.e. in remote areas) but although he had been stationed for a while in the Bridewell he was unaware of any occasion in which this had taken place.
Lawyers, dealing with criminal cases to whom we have spoken, said that the procedure was unheard of in the Dublin area.
As Sergeant Quinn had suggested to us that a remand into Garda custody might take place if the District Court had sat very late at night and Mountjoy was closed, we contacted Mountjoy and enquired up to what time they would admit prisoners. They replied that they would admit prisoners up to midnight and later if necessary if they were given notice that this was going to take place.
As the sitting of the District Court at which Fitzpatrick, McNally, Kelly and Plunkett were charged took place at lOJOpm and was over in a matter of minutes, there is no logistical explanation for their being kept in Garda custody overnight.
The fact is that:
(a) a remand into Garda custody is almost unique in the Dublin area; and
(b) there were no exceptIonal circumstances in this case which could possibly justify a remand into Garda custody;
(c) in any event the remand applied for and obtained was into Garda custody, a highly unusual procedure.
There has been at no stage any official attempt to explain why the remand into Garda custody took place in this instance - no attempt either at the trial or on any other occasion. But there is a very obvious explanation and it is the following: If the prisoners were suffering from injuries received within the previous 24 hours at the hands of Gardai, then the longer their committal to prison could be postponed the better, for no medical examination was likely to take place until then.
But there was an even more attractive reason for remanding the prisoners back into Garda custody. By placing them back in the Bridewell and by placing them two to a cell a scenario was being created whereby it would be maintained later that the injuries which they would undoubtedly be found to be suffering from, were either selfinflicted or mutually inflicted.
In the absence of any attempt at all, let alone any plausible attempt, to explain the reasons for this extraordinary remand into Garda custody, the presumption must be that there was an ulterior motive on the part of the Gardai for taking this exceptional course of action. That ulterior motive, in the circumstances, could be only that they wanted to delay a medical examination and/or they wanted to construct an alibi which would explain how the accused persons came to be suffering from injury.
In any event there is the difficult case of Osgur Breathnach to answer. He was not placed in a cell with anyone before he was medically examined and removed to the Richmond and before he was seen by Aidan Browne, SC. The evidence of Garda ill-treatment in his case is clearcut. That evidence lends further suspicion to the Garda motives for remanding Fitzpatrick, McNally, Kelly and Plunkett into Garda custody, following the preferment of charges in the District Court on the night of Wednesday, April 7, 1976.
There is additional reason for concern about this issue arising ftom the unexplained delay in charging the four accused. As the only evidence against any of them was their
self-incriminating statements, there was no reason to delay charging them once they had been assembled together in the Bridewell, literally yards from the Bridewell District Court.
All four were in the Bridewell Garda station from 11.30am on Wednesday, April 7, following Kelly's return from the trip to Ballymore Eustace and Bray. Thus the question arises why it took a further 11 hours to have them charged.
No adequate explanation for this was forthcoming during the trial. But there was a further suspicious twist to the case. The rules of the Bridewell specify that persons held on the same charge should not be placed in the same cell together.
Asked by Seamus Sorohan if he believed that what was done to Kelly and McNally was in contravention of the rules of the Bridewell, Detective Inspector Ryan said in evidence: "I believe it does my lords contravene those regulations." However, later in the trial Ryan contradicted his earlier testimony on that point. He said: "I am not aware of it (i.e. the rule in question). I think if that is there it is a new one."
Independent Evidence of Screaming in the' Bridewell
But before we leave the very persuasive evidence that McNally, Breathnach and Kelly were beaten up in the Bridewell, there is further independent evidence that there was something
untold going on in the Bridewell during the period in question.
This was evidence from five people being detained in the Bridewell during that same time. Mr George Royale gave evidence in Brian McNally's trial to the effect that he heard shouts in the Bridewell around 1.00 o'clock on the night in question. Later on, he said he heard screams and shouts coming from the tunnel under the station, the tunnel leading to the District Court, and that he heard a question being roared "who was driving?". He also gave evidence to the effect that Peter Royale, his brother, and Peter Harrington banged and kicked on the cell door after hearing screams, and that a Guard came down and told them to shut up or they would get the same. He further said that when they complained later on, they were told that they were better off keeping their mouths shut, that it had nothing to do with them.
George Royale admitted under cross examination that he had seven convictions against him, including ones for housebreaking, shop breaking, assault, and possession of a firearm. He denied fabricating his evidence and could not identify the person who allegedly had told him to "keep his mouth shut". He further said that he had been in the Bridewell on a number of occasions before but had not heard anything like the shouts and screaming he heard that night. As a result of what he heard, he joined the Prisoners Rights Organisation, and took part subsequently in a picket on the Bridewell. He denied that either he or his brother were founder members of the organisation but admitted that he knew some of its officers. He also stated under cross examination that he had spent three months in Mountjoy on remand for something for which, in the end, a nolle prosequi was entered.
James Lalor gave evidence at Brian McNally's trial to the effect that he heard shouting and screaming in the Bridewell around midnight on the night in question. He said that he banged on the door of his cell in an attempt to get the disturbance stopped, and that a Guard whom he could not now identify, told him to "mind his own business".
At the time of the trial in October 1978, James Lalor was serving a 12 months sentence in Mountjoy Prison, having been convicted of pick-pocketing. He further stated under cross examination that he had appeared in the District Court the morning after hearing the screams and shouts, and that he had received a 12 months sentence. He had not been contacted about the incident until almost two years after the event. At the time of his giving evidence, Peter Harrington was serving five years penal servitude for armed robbery and had served a year and a half of his sentence.
He gave evidence at Brian McNally's trial to the effect that he had been re-arrested, along with his co-accused who included George and William Royale, outside the Bridewell, after their case had been thrown out of court. He admitted that he had been in the Bridewell thirty times. When questioned about what he heard in the Bridewell on the Wednesday morning, he said that he heard screams and shouts, and the sound of something banging off a door. He said that it lasted for about two hours. He also said that he had been in the Bridewell on a number of occasions since that night but had never heard anything like it since. Peter Harrington spent the night in a cell with George and William Royale. Under cross examination, he admitted that he had a number of previous convictions including ones for receiving and stealing, robbery with violence, breaking and entering, and also with stealing a car. This last was in the English jurisdiction and he was convicted in London. He denied that he fabricated his evidence.
William Royale gave evidence at Brian McNally's trial to the effect that he had spent the night in a cell with his brother George, and Peter Harrington. He said that around midnight on the Tuesday, he heard shouts and screams in the Bridewell, and the sound of someone who was obviously in pain and frightened. He claimed he banged on the cell door to try and get the noise stopped, but that he was told he would be better keeping out of it and that it had nothing to do with him. William Royale said that he had been in the Bridewell many times since that night in relation to the same case. He admitted under cross examination that he had a number of convictions including housebreaking, malicious damage, larceny, and interfering with a motor car.
Alan Martin, giving evidence at Brian McNally's trial, said that he was brought into the Bridewell on Tuesday night at around midnight and that he had never been in the Bridewell before. He said that he heard screams and shouts in the cell next to his own, and that these lasted for one and a half to two hours. He also said that he had been in police custody three or four times and that he could not remember another incident like it.
Under cross examination, he admitted that he was arrested and detained under Section 30 of the Offences Against the State Act, 1939, and that he had been asked questions in relation to the Sallins Train Robbery. He further admitted that he had previous convictions including one for housebreaking. He said that he couldn't sleep because of all the screaming and shouting and crying that was going on, and that it seemed to have gone on for hours but that finally he managed to get to sleep. He said also that the following morning, the person who gave out the breakfasts said that the occupant of the cell nearby was not able for his meal, and gave him a double portion. He stated that all the commotion was going on when he was trying to get to sleep, and further denied that his evidence was fabrication.
Only the Most Cursory Investigation
The Senior Garda officers involved in the case acknowledged in court that they were aware of the allegations being made at the time about the ill-treatment of those held in connection with the Sallins mail train robbery. In view of the press coverage given to those allegations at the time - there were several press conferences held by members of the Irish Republican Socialist Party, to which most of those held belonged, to publicise these allegations. In addition, there was of course the Habeas Corpus hearing in the High Court of Osgur Breathnach, where allegations were made public and as a result of which Breathnach was sent to hospital by order of the court. Apart from that, the Gardai would have been aware from an early stage of the medical evidence that had been accumulated in the case.
Yet only the most cursory enquiry was held into these allegations. The most senior Garda officer involved in the case, Chief Superintendent John Joy said in evidence that he did not institute any enquiries into allegations of ill-treatment even after the Breathnach Habeas Corpus hearing. But he did ask Superintendent Casey, who was also involved in the case, to make informal enquiries after the District Court hearing on Thursday, April 8, when Plunkett, speaking on behalf of all four accused, said that they had been beaten up.
Casey made informal enquiries of two Gardai, both of whom were the subject of very serious allegations in the case and on hearing from these that there was nothing to the allegations he reported back to Joy that there was nothing to be worried about.
That was the extent of the Garda enquiries into the affair from that day to now. At any time Superintendent John Joy, or any of his superiors in the Garda Siochana, could have instituted a sworn enquiry on their own initiative into the allegations but that was never done.
The Amnesty File
Were it the case that only in this case was it alleged that the Gardai ill-treated persons in detention, then the allegations might be treated with greater reserve. But the fact is that throughout 1976 and the early part of 1977 allegations of Garda brutality were commonplace and the names of certain Gardai cropped up again and again in these allegations.
Amnesty International sent a team to Ireland in 1977. They examined a total of 28 cases, seven of which related to persons arrested in connection with the Sallins mail train robbery. In its report to the Irish Government Amnesty stated:
" ... Allegations common to every case examined are that the victims were at various times beaten and punched, the most common targets being the ears, stomach and groin; knocked or thrown against walls or furniture; thrown from one officer to another; kneed in the stomach and kicked. It was also commonly alleged that victims were pulled or swung by the hair; had their arms twisted behind their backs while they were punched; were spreadeagled against a wall and had their legs kicked apart so that they fell to the ground . . .. In five cases detained persons alleged they were beaten with objects ....
"The consistency in the nature of allegations from persons arrested at different times and in different parts of the country must, in the opinion of Amnesty International, lend weight to their validity, as must the fact that during the past 18 months and longer the same officers have been mentioned as being involved in maltreatment of suspects in reports made at different times in different parts of the country."
Thus in no sense could the allegations of Breathnach, McNally and Kelly be regarded as unique. There was a good deal of evidence that the Gardai were ill-treating suspects almost as a matter of routine at the time. In fact a delegation of senior Garda officers went to Garret FitzGerald in 1977 - he was then Foreign Minister. They told him about their concern about what was happening. FitzGerald raised the issue with the then Taoiseach, Liam Cosgrave, but nothing more was done, although FitzGerald did threaten to resign.
Summary of The Case so far
The following has been established so far: * That Osgur Breathnach suffered injuries and he could have come by those injuries only at the hands of the Gardai, for he was not in the company of anybody else during his period of detention in Garda custody, and his injuries could not have been self-inflicted.
* That Nicky Kelly and Brian McNally suffered injuries while in Garda custody but there was an opportunity for them to have inflicted injuries on themselves or have had them inflicted by colleagues as they were remanded into Garda custody, following their being charged in the District Court on the evening of April 7.
* That there was independent evidence of there having been screaming in the Bridewell during the period in question.
* That the Gardai applied for a remand back into Garda custody, in spite of the fact that senior officers were aware that very serious allegations were being made about Garda ill-treatment of these men over the previous few days.
* That the application for remand into Garda custody was highly unusual as was the application for a remand for one day.
* That the only plausible explanation for the remand into Garda custody was to establish a scenario whereby it could be alleged later that the accused came by their injuries other than at the hands of the Gardai.
Our contention is that there is persuasive evidence that Breathnach, Kelly and McNally were ill-treated by Gardai the evidence goes far beyond raising a reasonable doubt about the voluntary nature of their self-incriminating statements.
It is in the light of this established contention that the evidence of the Gardai in the course of the trial in the Special Criminal Court must be viewed.
Perjury by some of the 82
In the course of the trial a total of 82 Gardai gave evidence - allegations of ill-treatment were made against 19 of them. Everyone of them denied ill-treating any of the accused or being in any way aware that any of the accused were ill-treated by other Gardai.
The Gardai who gave evidence in the trial were:
Garda John Murphy Garda James Heffernan
D/Garda Thomas Connolly Supt. Hubert Reynolds
Garda Pierce Freaney D/Garda Gabriel McCarthy
D/Garda James Grehan D/Inspe"ctor FJ. Campbell
D/Garda Michael Drew D/Garda Thomas Ibar Dunne
D/Garda William Maher D/Garda Kieran P. Lawlor
D/Garda Adrian O'Hara D/Garda Felix McKenna
Garda Thomas B. Fitzgerald D/Insp. Myles P. Hawkshaw
D/Supt. John Courtney D/Inspector Cavan an
D/Inspector Edward Ryan Sergeant Patrick Bohan
Sergeant William Ryan D/Sgt. Patrick J. Sullivan
Asst. Comm. John P. Fleming Sergeant Luke Padden
D/Sgt. Patrick Culhane D/Garda Michael Finn
D/Garda Joseph Egan D/Insp. Vincent McGrath
Chief Supt. John J. Joy Supt. Patrick Casey
Garda Noel Ryan Garda Philip Bowe
Sgt. John M. Freeman Garda James Galvin
Supt. Patrick Casey D/Garda Thomas Fitzgerald
D/Garda O. Fitzsimons D/Insp. John Murphy Garda Noel McGuire
Garda Joseph Calnan D/Sgt. P.F. Cleary
D/Sgt. P.F. Cleary D/Sgt. Joseph Collins
D/Sgt. John J. McGroarty D/Garda Michael Mullen
D/Garda Patrick Waters D/Insp. James McPartland
D/Garda Fintan Dunne D/Sgt. Patrick Byrne
D/Garda Patrick Looby Garda George Callanan
Garda Francis King Garda Eric Lynch
Sergeant M. Purtill Sergeant Carey
D/Garda John Jordan Garda John Hyland
Garda Patrick J. Delaney Garda Joseph Callanan
Garda Alphonsus King Garda Eric Lynch
Ex-Supt. Patrick Flaherty D/Sgt. Michael Egan
Garda Peter P. Cavanan D/Sgt. Bernard Cullen
D/Garda Gerard O'Carroll ChiefSu pt. Anthony McMahon
Garda A. Keane D/Garda Joseph Holland D/Garda John Jordan
D/Insp. Richard Murphy D/Garda Michael Noonan
Sgt. Martin J. Dowling D/Sgt. Thomas Boland
D/Garda Patrick Raftery D/Sgt. Thomas King
Sgt. James Dolan Garda James G. Keogh
Garda Brian McGauran Garda Patrick Fitzgerald
D/Garda J. Naughton D/Garda lames Butler
Sgt. William lohn Fennessy Garda Peter P. Cavanan
Those against whom allegations of ill-treatment were made were:
D/Garda Thomas Ibar Dunne D/Supt. Francis Campbell
D/Garda Michael Finn D/Garda William Maher
D/Garda Kieran P. Lawlor D/Garda Thomas Boland
D/Sgt. Patrick F. Cleary D/Garda Joseph Egan
D/Sgt. Patrick Culhane D/Garda John Jordon
D/Garda Patrick Raftery D/Garda Felix McKenna
D/Sgt. John J. McGroarty D/Insp. Edward Ryan
D/Garda Fitzgerald D/Garda John Hegarty
D/Insp. Murphy D/Sgt. Cavanan
It is important for us to establish at this stage that we are not alleging that all Gardai who gave evidence perjured themselves. Nor are we alleging that the 19 Gardai against whom allegations of ill-treatment were made were in fact each guilty of ill-treatment. It is quite possible, indeed quite likely, that many of the Gardai who gave evidence knew nothing about what was going on. Furthermore it is both quite possible and quite likely that many of the Gardai accused of ill-treatment were in fact innocent of the charge.
But what we are saying is that it seems certain that a significant number of Gardai did perjure themselves during the course of the trial.
The Careful Preparation of Evidence by Gardai
There are copious examples of the Gardai having meticulously prepared their evidence for the trial. These are in the book of evidence which contain the statements made by all the Gardai involved in the case. The similarity of these statements is such as to suggest that there was a great deal of co-ordination of Garda evidence. Take for instance the statements of several Gardai in relation to Michael Plunkett who was acquitted at an early stage during the trial at the Special Criminal Court.
Take the statement of Garda "A" (we have been legally advised that we should not name the Gardai at this stage in our presentation): ... As we moved away from Harcourt Terrace, Plunkett said "You fixed that nicely", and (Garda B) said to Plunkett "Is it not true that you were free and you asked to go back to collect property" and Plunkett said "That's right". (Garda D) then said "I don't know what you're talking about, but I can assure you one thing, we fixed nothing, what are you talking about anyway?" Plunkett said "A man in there has identified me as being one of the men in his home on the night of the robbery. (Garda D) said "Is that so". (Garda A) then said to Plunkett, "It was you, who delayed leaving the station". Plunkett replied "That's right, its my hard luck, I am finished after that. They then had a general conversation after that ...
Then the statement of Garda B: Plunkett said "You fixed that nicely" and I said "Is it not true that you were free and you asked to go back and collect property," and he replied "That's right". (Garda D) then said "I don't know what you are talking about but I can assure you of one thing, we fixed nothing, what are you talking about anyway." Plunkett replied "A man in there has identified me as being one of the men in his home on the night of the robbery." (Garda D) said "Is that so." I then said to Plunkett "It was you who delayed leaving the $tation." He said "That's right, its my hard luck, I am finished now." After that we had a general conversation ...
The statement of Garda C: As we moved away from Harcourt Terrace, Plunkett said "You fixed that nicely" and (Garda B) replied "Is it not true that you were free and you asked to go back to collect property?" and Plunkett said "That's right". (Garda D) then said "I don't know what you're talking about, but I can assure you one thing, we fixed nothing - what are you talking about anyway?" Plunkett replied "A man in there has identified me as being one of the men in his home on the night of the robbery." (Garda D) asked is that so. (Garda B) said to Plunkett: "It was you who delayed leaving the station." Plunkett said "That's right". "It's my hard luck I am finished now after that." They then had a general conversation ...
The statement of Garda D: On the way Plunkett said, "you fixed that nicely". Garda B replied: "Is it not true that you were free and you asked to go back to collect property." Plunkett replied "that's right". I then said, "I don't know what you are talking about but I can assure you of one thing, we fixed nothing. What are you talking about anyway." Plunkett replied "a rpan in there has identified• me as being one of the men in his home on th'e night of the robbery." I replied, "Is that so." Garda B said to Plunkett, "nQw it was you who delayed leaving the station". Plunkett replied "that's right, it's my hard luck, I suppose. I'm finished now." Neither Garda B or I made any reply to this ...
The Book of Evidence in the case is littered with examples of these amazing similarities in Garda statements. One of the Gardai who gave one of the above statements was asked in cross examination how there was such sur. prising similarity between his statement and that of another Garda, he replied that it was a "pure coincidence".
The identicity of the Garda statements is such as to suggest yet a further conclusion: That not alone did a significant number of Gardai perjure themselves in the trial but that there was a conspiracy among certain Gardai to commit perjury - i.e. to subvert the course of justice.
The Inaction of Gerry Collins
The allegations of Garda brutality in connection with the Sallins robbery came to prominence most at the time of the Fianna Fail Ard Fheis in February 1977 - Fianna Fail was then in opposition.
Speaking in the RTE radio programme, the News At One Thirty on February 18, 1977 Collins said: "the Ministerfor Justice has a very grave responsibility to immediately set up a judicial enquiry into the allegations made and have the machinery there in operation ready at the push of a button to deal with allegations as they arise ...
"If there is any truth whatsoever in these allegations ... those who might be responsible for ill-treatment of persons in custody (the Minister should ensure) would be disciplined as they should be."
Four and a half months later Gerry Collins was Minister for Justice himself. He made no attempt to institute an enquiry of any kind into the allegations that he had spoken of in February 1977.
He did however establish in October 1977 a commission, under Justice Barra 0 Briain to make recommendations for the safeguard of persons in custody and to protect the good name of the Gardai by the same safeguards.
The 0 Briain committee made a total of 23 recommendations. Of these only one has been implemented and that was following a Supreme Court judgement.
Thus, not alone was there no investigation of any kind into the very compelling prima facie evidence that Breathnach, Kelly and McNally were beaten up by the Gardai and that a significant number of Gardai conspired to subvert the course of justice by plotting to commit perjury, but no safeguards were instituted to ensure that it would not happen again. In spite of very specific recommendations by a government appointment commission. But the story does not end there.
Of the 19 members of the Garda Siochana against whom allegations of ill-treatment were made in connection with the Sallins mail train robbery, the following is a progress report on some of their careers since then:
Detective Garda Thomas Ibar Dunne is now a Detective Sergeant.
Detective Sergeant Francis Campbell is now a Detective Inspector.
Detective Garda Thomas Boland is now a Detective Sergeant.
Detective Sergeant Patrick Culhane is now a Detective ,Inspector.
Detective Sergeant John J. McGroarty is now a Detective Inspector.
Detective Inspector Edward Ryan is now Detective Superintendent.
Detective Sergeant Canavan is now a Detective Inspector.
Detective Inspector Courtney is now a Detective Superintendent; and
Detective Garda Michael Finn and Detective Sergeant Patrick F. Cleary
Thus at least eight of the 19 Gardai who allegations were made were promoted subsequently. Again it is important for us to state that we are not alleging that any one of these Gardai were in any sense guilty of any wrongdoing. But we are drawing attention to the fact that these promotions took place without any enquiry whatsoever taking place into the very serious and convincing case that some of them may have been guilty of having ill-treated people in custody and participated in a plot to subvert the cource of justice by conspiring to commit perjury.
The fact that Gardai may have beaten up some people in custody is not of enormous significance to the body politic. Nor is even the likelihood that an innocent person (i.e. Nicky Kelly) may be in jail as a result of irregular Garda procedures. Nor is the significnace of the case in that a significant number of Gardai engaged in a plot to subvert the court of justive by planning to commit perjury.
The primary significnace of this case is that brutality, perjury and conspiracy could occur without any investigation taking place whatsoever or without any political controls being placed on the Gardai as a result. The conclusion must be that the Gardai are effectively outside normal political controls, able to engage in illegalities, even criminalities, without investigation, without restriction, even without censure. It has all the makings of a police state, if only in an embryonic stage.