Smithwick Tribunal failed to establish collusion based on balance of probabilities

Major flaws in the tribunal process should lead to Government rejecting the collusion finding

The bullet-riddled Cavalier car belonging to senior RUC officers Harry Breen and Bob Buchanan after their murder in an IRA ambush in March 1989

The bullet-riddled Cavalier car belonging to senior RUC officers Harry Breen and Bob Buchanan after their murder in an IRA ambush in March 1989

Tue, Jan 28, 2014, 06:00

As retired Garda Chief Superintendents we acknowledge that the murders of RUC Chief Superintendent Harry Breen and Superintendent Bob Buchanan on the March 20th 1989 were a brutal and callous act committed by the Provisional IRA.

We unreservedly affirm our view that any member of the Garda Síochána who colluded in this crime deserves to be dealt with in the severest manner provided by law and should suffer commensurate public opprobrium.

However, the Smithwick Tribunal has singularly failed to establish collusion based on the balance of probabilities.
The report runs to 1,652 pages that are available online or in hard copy of 434 pages with part II of the report contained on a CD disc. It is an extremely arcane document both in terms of layout and narrative. At the outset Judge Smithwick clearly says that;

There is no record of a phone call, no traceable payment, no smoking gun…(23.1.2)

He did not make a collusion finding against sergeants Finbarr Hickey, Leo Colton or Owen Corrigan. He makes this finding against other unnamed gardaí present in Dundalk Station on March 20th, 1989. We have searched for the logic and the reasoning behind this finding and it obviously should have two manifestations, legal and factual. In legal terms the assumption is that it is on the “balance of probabilities”. However, the balance of probabilities make sense provided there are individual facts, which collectively allows one to make a global conclusion. There are no such individual facts.

The tribunal commenced its work with a number of inherent disadvantages. In the first instance it was fully 17 years after the crimes before it got down to doing “investigatory” work. There are obvious consequences which flow from this passage of time – particularly flawed memory. Well ventilated discussions alleging collusion against a named individual during this time certainly could have contaminated recollections.

The second major problem was the fact that it only had powers to compel individuals in the Republic. All relevant parties elsewhere were voluntary participants. This was like asking an investigator to investigate a murder in a two-storey building, where the crime was committed on the second floor. The investigator was empowered to use a full range of investigatory powers for persons and things on the ground floor but when it came to investigating the crime scene and those most intimately connected with it, this had to be achieved on a voluntary basis.

Thirdly, the tribunal did not have a team of professional crime investigators to assist with the process. Such a team would have advised that all criminal investigations start at the crime scene and radiate out from there. Similarly professionals would have cautioned against pursuing a preferred suspect or suspects to the effective exclusion of all others. This bias can be either a conscious act or unconscious approach influenced by prior events.

Fourthly, it failed to conduct a crime reconstruction or have a detailed analysis carried out of Dundalk Garda Station. This was major omission of rudimentary fact-finding.

The tribunal did not forensically examine this proposition. Any professional investigator would have mapped the physical environs of the station, providing a detailed floor plan, the positions of all phones within the building, the office occupied and used by whom and the identity and positioning of all gardaí. A professional investigator would have reminded the tribunal that all crimes have three key factors; motive, opportunity and means. This reconstruction would have been a formidable task but, after all, the tribunal took eight years to arrive at its unsubstantiated conclusion.

Failure to follow this forensic path was a major flaw.
Basis for findings

The tribunal based its collusion findings on four pillars. These were:

ncircumstances;

nthree strands of intelligence received by the Garda Síochána;

n2012 information from the PSNI, and;

nthe evidence of double agent Kevin Fulton/Peter Keeley.


Circumstances
Smithwick says that the circumstances alone are sufficient to allow a finding of collusion. It is not clear what specific circumstances are referred to or on what grounds a particular set of circumstances is preferred over another.

Indisputably the PIRA had the capacity to mount this operation independently. Over 300 security force personnel were killed by PIRA in Co Armagh between 1969 and 2001. Many civilians also died. PIRA needed no help in the killing game. The tribunal also discarded the notion of ongoing PIRA surveillance operations, which had identified the car of Supt Bob Buchanan for many months.

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