Retired gardaí’s critique of Smithwick Tribunal report is highly selective

In their critique of Judge Smithwick’s report, the three retired gardaí state that they have “followed the same journey as the tribunal” and “walked in the footsteps of Smithwick”.

As one of a very small number of persons who attended more than 130 days of public hearings, I know this to be the first of many inaccuracies in their 33-page document.

With the exception of the days on which two of them gave evidence as witnesses before the tribunal, these three men, unlike Judge Smithwick, were not present. Unlike Judge Smithwick, they did not hear the evidence of 198 witnesses and observe their demeanour; nor were they present as large volumes of documentation from both security agencies in both jurisdictions were put into the record of the tribunal.

They have no doubt walked in the footsteps of Chief Supt Harry Breen and Supt Bob Buchanan in the corridors of Dundalk Garda station on many occasions but they have certainly not walked in the footsteps of Judge Smithwick through the course of his painstaking and exhaustive inquiry into this most serious matter.

Their lack of familiarity with the evidence of the tribunal is manifest. To take but a few examples, contrary to what is suggested in the “critique”, the tribunal did in fact hear extensive evidence in relation to the operating procedures, both standard and personal, of RUC officers crossing the Border; days of evidence were devoted to constructing a minute by minute picture of events in Dundalk station on the morning of March 20th, 1989, and detailed evidence was given, both by eye witnesses and by reference to RUC documentation and the coroner’s file, as to the dreadful events on the Edenappa Road itself.

A further error is made on page 21, when the authors state that a reference, in the anonymous “Final Approved Note” provided by former personnel of the Provisional IRA, to a sighting of the late Chief Supt Breen as a passenger in the late Supt Buchanan’s car in Meigh in 1988 was a “corroborated event”. It was not.

As noted at paragraph 22.5.7 of his report, despite extensive trawling by Judge Smithwick through the diaries of both officers, this could not be corroborated.

The error is just not significant in itself but also because it is illustrative of the authors’ keenness to accept the version of events provided by the former personnel of the IRA.

The central premise of their critique is that Judge Smithwick did not pay enough deference to that account. The authors note in their conclusion, “in our professional experience and judgment and having regard to all the information, particularly the input from the PIRA, we are of the view that it is more probable that the South Armagh PIRA carried out the attack with their own resources”.

As a lawyer, I find it surprising that three former police officers would argue that such primordial weight be attached to information which was not evidence – not provided in oral testimony under oath and tested by cross-examination – and summarily dismiss other compelling testimony tested in cross-examination. Furthermore, no reference is made to the fact that aspects of the IRA’s version of events have been conclusively proven – by objective evidence such as the autopsy reports – to be simply untrue.

One of the most telling aspects of the critique is the scant regard given to the evidence of a retired brigadier of the British army that a significant increase in radio signal traffic began between 11.30am and noon on March 20th, 1989, and continued until the completion of the operation.

He analysed the radio signals intelligence shortly after the murders and, as recorded at paragraph 3.5.5 of the report, stated that “it was quite clear that this was an IRA operation that had started between 11.30 and 12.00”.

His evidence in this regard was unchallenged (including by counsel for the Garda Commissioner) and uncontradicted, and was corroborated by evidence given by a retired RUC chief superintendent, Witness 27.

As is clear from Chapter 22 of Judge Smithwick's report, this evidence is of pivotal importance as it drives a coach and four through the IRA's account of mounting an operation early in the morning of March 20th, 1989, on the basis of their own surveillance of Supt Buchanan's red Vauxhall Cavalier. It is, instead, consistent with the operation being mounted later in the morning after the meeting which the RUC officers ultimately attended in Dundalk had been arranged. Notwithstanding the clear evidence to the contrary, the authors of the critique summarily dismiss this crucial aspect with the bald assertion that "any connection between this radio activity and the attack is speculative and coincidental" .

The selective nature of the authors’ approach to evidence is also demonstrated by their analysis of two other important conclusions made by Judge Smithwick. In stating that the tribunal erred in concluding that Chief Supt Breen was not the target of the IRA operation, they rely heavily on the fact that in his interview with the tribunal’s legal team, a former PIRA commander gave the “clearest message” that Breen was not the target.

However, unlike Judge Smithwick (at paragraphs 22.7.1 - 22.7.3 of his report), they make no effort to weigh this PIRA commander’s assertion against the evidence of an experienced detective sergeant in Dundalk and intelligence information received immediately after the killings, both of which clearly suggested that Chief Supt Breen was the target.

On the other hand, in asserting that the tribunal was wrong to conclude that the IRA intended to kidnap and interrogate the two RUC officers before murdering them, the authors ignore completely the IRA account to this effect, to which, in all other respects, they are so keen to attach primordial weight.

Elsewhere, the critique criticises the tribunal for relying on the evidence of Assistant Chief Constable Drew Harris of the PSNI on the basis that he was only the "conduit" for the intelligence information to which his evidence related; but equally it criticises the chairman for relying on the evidence of the Garda handler of an informant who provided three strands of information suggesting collusion (intelligence classified by a retired assistant commissioner from the Garda crime and security branch as "without doubt high-grade intelligence") on the basis that "the handler should not be the evaluator of the information".

The critique is highly selective not only in terms of the evidence the former gardaí choose to rely upon, but also in its interpretation of the tribunal’s conclusions. The former gardaí state that “the tribunal conclusively found that none of these three members were the colluders”.

Judge Smithwick's conclusions were in fact much more nuanced. He concluded that former Sgt Hickey "was not in a position to have colluded" in the murders of the two officers, and that, bearing in mind the standard of proof required pursuant to the Supreme Court decision in Lawlor v Planning Tribunal [2010]1 I.R. 170, "the evidence does not establish" that retired Sgts Hickey or Corrigan colluded.

This very considered conclusion puts paid to the suggestion that the tribunal set out to prove the hypothesis that retired Sgt Corrigan (or Hickey or Colton) colluded with the Provisional IRA.

The Smithwick report is a comprehensive, nuanced and fair document. With its 198 witnesses and vast volumes of documentation, it is very easy for any individual to select from it the evidence (or, as is the case here, the information) which supports his or her point of view.

However, the task of a tribunal is painstakingly to assess and weigh all the evidence. In performing that task, Judge Smithwick, unlike the former gardaí who wrote this critique, two of whom were witnesses before the tribunal, has demonstrated his independence.

John McBurney is the solicitor who represented the family of Chief Supt Harry Breen at the Smithwick Tribunal.