Puzzling questions remain despite Arms Trial report

The Attorney General and the Minister for Justice have concluded that a conspiracy to suppress evidence at the 1970 Arms Trial is unlikely to have taken place. However, they both say that such a conspiracy cannot be ruled out, and several puzzling and unexplained facts bear this out.

First, there is the missing documentation. Despite extensive searches the Attorney General and Minister for Justice have been unable to locate any papers relating to the decision to prosecute. They have found no Garda file, although many of the documents such as original statements that would have appeared in a Garda file have turned up in Department of Justice files.

They have uncovered no working papers concerning the preparation of the book of evidence such as copies of original statements. According to one civil servant familiar with the inquiry, "One thing civil servants are good at and pride themselves on is keeping good records". For a case so important, there is, unfortunately, an awful lot of material missing.

There is also one incontrovertible fact that has been confirmed by the inquiry: the statement of a key witness, the former director of army intelligence, Col Michael Hefferon, was significantly edited before its inclusion in the book of evidence. The editing served to exclude his evidence that the minister for defence, Mr Jim Gibbons, knew of and approved the arms importation at the centre of the case.

Such evidence served to undermine the prosecution case against Charles Haughey, John Kelly, Capt James Kelly and Albert Luykx, that the arms importation attempt in which they were involved was illegal. And while many of the cuts appear to conform with the practice of excluding "hearsay", not all do. Indeed Mr McDowell says he does not understand why some of the excisions were made. He says that some of the references to Mr Gibbons's knowledge of the arms importation - edited from the statement - were relevant, and he does not offer a justification for the editing.

In one instance he draws attention to what he calls a "puzzling" change. Col Hefferon's account had Capt Kelly telling Mr Gibbons of his plans. This was changed in the Attorney General's office to an account which has Capt Kelly telling Col Hefferon of his plans. As a result, he says, "a different meaning or impression of these events is given".

A strong argument has been made by Mr Desmond O'Malley, minister for justice at the time, that such editing would have been pointless, as the original unedited statement would have been available in court and any cuts could have been spotted.

Mr McDowell draws an important conclusion, backing up Mr O'Malley, that "there is no reason to believe that the original statements of all witnesses were not available in court to be called for by the defence in cross-examination as to credibility, by the prosecution in order to have a witness declared hostile, or by the court itself in ruling whether a witness should be called."

He refers to a letter from the office of the Chief State Solicitor to Mr Haughey's counsel in September 1970 which says that all original statements would be in court in the custody of Chief Supt Fleming, who led the Arms Trial investigation.

However, if the original statement was indeed made available, it is difficult to understand why the lead prosecution lawyer, Mr Seamus McKenna SC, the attorney general, Mr Colm Condon, and the trial judge, Mr Justice Henchy, all say they have no recollection of it. The matter, after all, became one of considerable importance in the second Arms Trial, when the prosecution decided not to call Col Hefferon.

This was in part on the grounds that in the first trial he had given evidence which, the prosecution argued, contradicted his original evidence.

HAD the prosecution known of the content of Col Hefferon's original statement, they clearly would have known that this was untrue, and that Col Hefferon's evidence was indeed consistent with his Garda statement.

Indeed there is one very good reason to believe that Col Hefferon's original statement may not have been among the witness statements available at the second Arms Trial. This is that the prosecution had decided that it would not be calling Col Hefferon at the second trial. He therefore was not a witness, and his original statement would not be expected to be among the witness statements.

It was on day two of that second Arms Trial that the minister for justice, Mr Desmond O'Malley, signed the certificate claiming privilege over the main Arms Trial file, which included among many other things a copy of Col Hefferon's original statement.

However, Mr McDowell clearly sees the timing as coincidental, saying: "I do not believe it reasonable to suggest that the claim of privilege was part of a stratagem which involved deceiving the prosecution team as to the contents of Col Hefferon's original statement."

Mr McDowell outlines very clearly the conspiracy theory, before saying that he does not, on balance, go along with it.

He writes: "The questions raised in the media amounted to an allegation that the statement of Col Hefferon, an important witness in the Arms Trial, was altered prior to inclusion in the book of evidence so as to remove from it references to the state of knowledge of the then minister for defence, Jim Gibbons, of the planned importation of arms.

"This was one of the key points of contention in the Arms Trial. At least some of the defendants claimed that the minister for defence knew of the planned importation, and at least tacitly approved of it, and that, far from conspiring to import arms unlawfully, they were acting at all times on the lawful authority of the minister. The minister for defence always strongly denied this."

He says it is "impossible, at least on the evidence currently available, to make an authoritative finding of fact in relation to the truth of the allegation".

However, he says it is "reasonable to seriously doubt whether a number of persons who held positions of responsibility would have engaged in a conspiracy which, from their undoubted knowledge of the law, they surely would have known was almost certain to be exposed."

Having said all that he also outlines the remaining mystery, and in doing so appears to sit on the fence somewhat. "It seems to me", he says, "that Col Hefferon's original statement was potentially embarrassing to minister Gibbons and, probably, to the government of which he was a member.

"By excising most (if not all) of the material in the statement which suggested knowledge, if not explicit approval, of the importation attempts, Col Hefferon's statement could be said to have been made to look much more compatible with the line taken by minister Gibbons in his series of statements to the gardai. Some might claim that this was a factor in the editing policy adopted in relation to this statement."