Judiciary – not just gardaí – face questions about past actions

RTÉ's television series Crime and Confessions focused on the role of gardaí in securing "confessions" from innocent people in the 1971 Una Lynskey murder, the 1976 Sallins mail train robbery, and the 1984 Kerry Babies case.

The repercussions of those actions for the accused and their families live on today.

However, there are questions, too, for the judiciary, which have so been ignored. The discredited Kerry Babies Tribunal, chaired by Judge Kevin Lynch, was set up to investigate Garda conduct in a case where the entirely innocent Hayes family ended up confessing to a killing they could not have done.

The long-running Kerry tribunal became a trial of the innocent Hayes family and an exoneration of relevant gardaí, a decision those gardaí would use thereafter to inhibit inquiries by journalists investigating the case.

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But it is in the Sallins case where the judiciary has the greatest questions to answer.

In January 1986 the High Court decided that Nicky Kelly's civil action against the State could not proceed as it had already been heard at the Special Criminal Court

On March 31st, 1976, the Cork to Dublin mail train was robbed near Sallins in Co Kildare, with about £200,000 stolen. Five men were arrested: Osgur Breatnach, Nicky Kelly, Brian McNally, Michael Plunkett and John Fitzpatrick. During interrogation by gardaí all except Plunkett signed "confessions" and all had injuries they claimed were inflicted by gardaí.

In 1978, the late Justice Liam Hamilton in the Special Criminal Court accepted that the confessions were signed voluntarily by Kelly, McNally and Fitzpatrick and that their extensive injuries "were self-inflicted or inflicted by collaboration with persons other than members of the Garda Síochána".

That they along with Plunkett had been detained, against station rules, two to a cell in the Bridewell after they signed those "confessions" , did not prompt Justice Hamilton to question this. Nor did he do so in the Osgur Breathnach case.

Breathnach had only been in the company of gardaí prior to signing his “confession” but was so badly injured he was taken to the then Richmond Hospital afterwards. The implication of Justice Hamilton’s decision in accepting the confessions as evidence was that Breathnach had beaten himself up so badly he had to be hospitalised.

But the Special Criminal Courts already had some form in the Sallins case. In the first trial, which began in January 1978, one of the three judges then hearing the case, Judge John O'Connor, kept falling asleep. Eventually this was formally raised by the defence to the annoyance of all three judges. They retired to consider the matter and made a judgment, "as a finding of fact", that their colleague had not been sleeping.

This was upheld on appeal by both the High Court and the Supreme Court. Altogether, nine of the country's then most senior judges backed the Special Criminal Court decision that, "as a finding of fact", Judge O'Connor had not been sleeping.

A month afterwards – on June 6th, 1978 – Judge O’Connor died. It transpired he had been on medication for a heart condition. The trial, by then on its 65th day and the longest and most expensive in the State’s history, had to be abandoned. The second Sallins trial, under Justice Liam Hamilton alone, began in October 1978.

In December 1978, when Justice Hamilton accepted the "confessions" as evidence, Nicky Kelly knew he would be convicted. He went on the run in Europe, Canada, and the US. In his absence he was sentenced to 12 years penal servitude. So too were Osgur Breathnach and Brian McNally.

In May 1980 the Court of Criminal Appeal quashed the Breatnach and McNally convictions as “the statements made by the applicants were not legally admissible ... and sets aside the conviction and sentence in each one.”

Sentenced on the same basis as Breathnach and McNally, Nicky Kelly decided to return from the US in June 1980, believing that he was safe, especially since the IRA had in April 1980 issued a statement claiming responsibility for the robbery.

On arrival at Shannon airport Kelly was met by gardaí and taken to the Special Criminal Court in Dublin. From there he was taken to Portlaoise prison to complete his sentence of 12 years penal servitude. In November 1980 he applied for permission to appeal his case to the Court of Criminal Appeal. This was rejected.

An appeal of this to the Supreme Court succeeded. In February 1982 the Court of Criminal Appeal rejected his appeal. This was appealed to the Supreme Court where it was rejected in October 1982, as announced by then Chief Justice Tom O’Higgins.

In 1983 Nicky Kelly went on a hunger strike for 38 days which he ended on being persuaded on behalf of the government that there remained one legal avenue for him to take.

He could take a civil action against the state – the gardaí, the Attorney General, and Ireland – which, if successful, could have implications for his imprisonment, he was told. For him the most immediate attraction was that such an action would take place before a jury, a first in his case.

It did not happen.

In December 1983 when he initiated the civil action as advised the State opposed it and entered a defence denying he had been beaten up by gardaí. At the High Court in May 1984, before Justice Liam Hamilton, the State argued the action should be stopped as it had already been heard at the Special Criminal Court. Justice Hamilton referred it for a full High Court hearing.

Then, in July 1984, the government decided to release Nicky Kelly “on humanitarian grounds”.

In January 1986 the High Court decided that Nicky Kelly’s civil action against the State could not proceed as it had already been heard at the Special Criminal Court. In announcing the decision Justice Rory O’Hanlon used the 1980 Denning judgment in the Birmingham Six case as precedent.

In that latter case six innocent Irishmen were convicted, in circumstances similar to those convicted of the Sallins mail train robbery, of the 1974 Birmingham bombings in which 21 people were killed. The Six were freed in 1991.

The Birmingham Six were convicted in 1975, Nicky Kelly in 1978. Their appeal in 1976 failed, as Kelly's did in 1982. In 1977 the Birmingham Six took a civil action and in 1980 Lord Denning of the UK's Court of Criminal Appeal, found their proposition "that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary, and were improperly admitted in evidence and that the convictions were erroneous" to be, as he put it, "an appalling vista". He ruled against the Birmingham Six.

In 1982, Nicky Kelly’s appeal to the Supreme Court Chief Justice Tom O’Higgins found Kelly’s proposition “that the various garda witnesses allegedly involved in ill-treatment committed perjury in their denials of the appellant’s allegations and that, contrary to the conclusion arrived at by the trial Court, the evidence given by the appellant was true in substance and fact” to be, as he put it, a “drastic conclusion.”

In his 1980 judgment Lord Denning lauded the justice system – in the Birmingham Six case – “where the State had lavished large sums in their defence”.

In 1982, Chief Justice O’Higgins felt, where Nicky Kelly was concerned, that it was “seldom that the appellate jurisdiction of our courts had been so fully exercised.”

Kelly, he said, “although he remained, culpably, out of the country for 18 months, following his conviction and sentence, has nevertheless been afforded every opportunity of establishing that he should not have been convicted and to this end has had his appeal fully heard and considered, not only by the Court of Criminal Appeal but also by this Court.”

By January 1986, when Justice O’Hanlon gave his judgment dismissing Kelly’s civil action, 19 of the leading members of the Irish State’s judiciary had dealt with his case, some more than once. Included were seven Supreme Court judges, seven High Court judges, two Circuit Court judges, and three District Court judges.

Some years later Lord Denning, who had by then retracted his 1980 Birmingham Six judgment and expressed regret about it, was told how that same judgment had been employed by the Irish Courts to block the Nicky Kelly civil action.

Discussing this one day outside the House of Lords in London with former journalist and Labour MP Chris Mullin, who recalled the conversation later for Nicky Kelly, Denning was baffled and commented, "they were always silly people, weren't they?"

In April 1992 Nicky Kelly received a presidential pardon from then President Mary Robinson which stated that, in law, it was "as if he had never been charged or convicted" in connection with the Sallins mail train robbery.

Publication of While Justice Slept

It took me 13 years to get the book While Justice Slept: the True Story of Nicky Kelly and the Sallins Train Robbery (The Liffey Press) published in 2006 and that was mainly because of Judge Kevin Lynch’s findings in the Kerry Babies Tribunal in favour of the gardaí.

In April 1987 gardaí in the case successfully sued Brandon Press which published My Story, Joanne Hayes’s account of what had taken place. The gardaí also successfully sued distributors of the book. Rights to film it had also been sold but the successful libel action put an end to that.

In 1993 Gill and Macmillan agreed to publish While Justice Sleeps, as it was titled then. After many rewrites for legal reasons, also involving advice from their senior counsel Eoin McCullough, they withdrew their offer in 1995 feeling the risks were too great.

It did not help that in 1993 relevant gardaí in the Sallins case had sought to jail Gay Byrne and to have RTÉ's assets confiscated after the broadcaster interviewed Osgur Breathnach. It was thrown out by the High Court.

In 1995 copies of the book were sent to Brandon Press in Dingle who, advised by then senior counsel Adrian Hardiman (later Supreme Court judge), were enthusiastic but eventually declined as they felt the risk too great following the successful libel action by Kerry Babies' gardaí over the Joanne Hayes book.

Six other publishers were then contacted but all had similar concerns.

In 1996 Blackstaff Press in Belfast were sent a copy and, advised by then senior counsel Alex White (later Minister for Communications, Energy and Natural Resources), suggested changes which might mean the book could be published without legal risk. The changes necessary to the book would have made it unreadable, so it was withdrawn.

It rested so until 2004 when The Liffey Press asked for book ideas. A copy was sent to them. Eventually, the names of all gardaí involved in the Sallins case were dropped and, following more rewrites, the book was published in 2006. It begins with an interview a leading member of the IRA gang which actually carried out the Sallins mail train robbery.