Many Arms Trial commentators are not familiar with the details

Any proper analysis of the Arms Trial documentation is a tedious and laborious task. The reconstruction 31 years later of the process whereby the statements of the witnesses were edited for inclusion in the Book of Evidence requires painstaking work and analysis.

To attempt to gain an understanding of the mental processes of the legal team at work in that case, it is also necessary to have regard to the rules regarding criminal evidence and practice which were then in operation in 1970.

I fear that many commentators simply have not taken the time to acquaint themselves with the minute detail of that documentation or to familiarise themselves with the technicalities of criminal evidence and practice which they obtained.

While The Irish Times was gracious enough to print the entirety of a long and complex statement from me (albeit without the necessary underlinings lost in transmission from my office to the newspaper), I fear that the accompanying commentary often simply missed the essence of my critique of the Prime Time programme.

First, as I pointed out in my statement, there is no close correlation between the marks and underlinings allegedly made by Mr Berry on Col Hefferon's statement and the subsequent changes.

This was central to the Prime Time thesis, which suggested that the pattern of the changes was such that they followed the marks and underlinings allegedly made by Mr Berry.

The very fact that, for example, seven of the 15 changes do not correlate in any way to the marks/underlinings and that there are a further 15 marks at the side and four underlinings on the document for which there is no corresponding change in the statement, ought to demonstrate the frailty of the inferences sought to be drawn by Prime Time.

Secondly, I sought to demonstrate how each of the 15 changes could be accounted for either by reason of the fact that Col Hefferon either was doubtful on the point (". . . I cannot say if Mr Gibbons knew this . . .") or simply expressed an opinion ("It is my opinion that Mr Gibbons knew that Capt Kelly was involved in assisting the Defence Committees in the North to procure arms"), or because of the hearsay rules and the law of evidence generally.

The Irish Times editorial on Thursday said it was not clear that "all the excisions fall into the category of opinion, hearsay or personal belief", but it pointedly refrained from giving examples of excised or changed material which did not broadly fall into at least one of these categories.

At least the Irish Independent's editorial (while generally agreeing with my analysis) gave one example of an excision from Col Hefferon's statement which it did not think was hearsay: "I saw Mr Gibbons again in his office and I told him that Capt Kelly intended travelling to the Continent again in connection with this arms deal."

But why is this not hearsay? The excised passage contains a statement by one party (Col Hefferon) to another party (Mr Gibbons) about the intentions of a third party (Capt Kelly) in the absence of that third party. Even statements made by a witness as to their own intentions or feelings often fall foul of the hearsay rule, never mind statements made by one person to another about the alleged intentions of an absent third party.

While accepting that the law against hearsay is complex and difficult, I was surprised that Mark Hennessy's analysis overlooked more straightforward matters contained in my statement. He asserts that I never acknowledged that the "cuts could equally have helped the defence of those accused, including Mr Haughey".

I did, however, point out that the inclusion of certain material (apparently ruled out on hearsay grounds) "would undoubtedly have assisted the defence". While being at pains to rebut the Prime Time thesis that all the changes to the Hefferon statement favoured the prosecution, I pointed out that some of the changes and omissions in the editing of the statements favoured the defence.

I also fail to see how the Hefferon controversy could have affected Mr Haughey's defence, as Mr Haughey denied all knowledge of an attempted arms importation. His co-accused took a very different line, not compatible with Mr Haughey's denials.

Mr Hennessy then asserts: "Mr O'Malley insists once again that the archives file holds papers that were not there on the night he claimed privilege on it three weeks after he became minister for justice. True, much has been added. However, the Hefferon statement [of May 1970] must have been there, given that the file was active by then."

I pass over the fact that the claim of privilege in question was signed on October 7th, 1970, some five months after I became minister. My point is that the claim of privilege merely referred to File S/7/70, that the documents over which privilege was claimed were (unfortunately) not identified or scheduled (as would be the modern practice), and while it is possible that the Hefferon statement was included therein, I think this is far from certain.

Critically, however, it is clear, from the internal evidence in the present version of File S/7/70, that it has been greatly expanded since 1970 and that it was subsequently used as a sort of depositary file for all materials relating to the Arms Crisis.

If Mr Hennessy is correct, then it suggests that every document generated between May and October 1970 relating to the Arms Crisis and which is now contained in File S/7/70 was the subject of a claim of privilege just because "the file was active by then".

THIS, with respect, is a risible analysis. Is it seriously suggested that documents generated during that period and which are now contained in File S/7/70 and which, for example, were produced in court (such as the actual Book of Evidence of June 1970) were the subject of a claim of privilege just because "the file was active by then"?

Mr Hennessy next takes issue with my assertion that the editing of the statements was done by junior prosecuting counsel in conjunction with the senior criminal solicitor in the Chief State Solicitor's Office.

But leaving aside the fact that the editing by junior prosecuting counsel of statements for hearsay was apparently standard practice at the time, the letter from the Chief State Solicitor's Office of July 30th, 1970 (annexed to my statement), makes it perfectly clear that these were the individuals who quite properly compiled the Book of Evidence. xo>

Finally, Mr Hennessy rounds off his analysis with a quotation from "a source" to the effect that the cuts in Mr Gibbons's statements "could have been done to protect Gibbons".

No person who has read Mr Gibbons's original statements could think this was at all likely. Mr Gibbons's original statements are replete with damaging assertions and expressions of opinion concerning the activities of Messrs Blaney, Haughey and Kelly. Much of these statements contained hearsay or otherwise inadmissible evidence, and it seems it is for these reasons that Mr Gibbons's statements were so heavily edited, as were so many others.

It seems clear that these changes and deletions were made for these reasons even though they could only disadvantage the prosecution case.

In recent times some commentators have come forward with questions which they feel I still have to answer. I think I have gone to great lengths to answer these questions and I believe I have done so satisfactorily, although it is not really for me to do so on behalf of the prosecution.

Perhaps it is time that those commentators now answered a few questions I pose. Is there a close connection (as Prime Time claimed) between the markings allegedly made by Mr Berry on the original Hefferon statement and the subsequent changes?

Do all the changes to the statements favour the prosecution and hamper the defence? And if, as Prime Time claimed, an attempt was being made to "doctor" the witness statements so as to favour the prosecution, perhaps someone might explain why material which was potentially highly damaging to the accused was excised from the statements of key witnesses such as inter alia Mr Gibbons and Mr Donnelly (a senior official at the Department of Justice)?

Perhaps these, and many other questions, can be answered at a full inquiry. At such an inquiry all the military intelligence files can be produced, and the full story of what happened between August 1969 and May 1970 can be told for the first time.