Dáil Éireann - Volume 354 - 04 December, 1984

Private Members' Business. - Northern Ireland Supergrass Trials: Motion.

An Ceann Comhairle: The Whips of the two main parties have suggested the following timetable for this evening: 7 p.m. to 7.30 p.m. Deputy Rory O'Hanlon, 7.30 p.m. to 7.40 p.m. Deputy Colm Hilliard; 7.40 p.m. to 8 p.m. a Government speaker, and 8 p.m. to 8.30 p.m. Deputy Liam Fitzgerald. I am accepting that timetable. Is it acceptable to the House?

Deputies: Agreed.

Dr. O'Hanlon: I move:

“That Dáil Éireann condemns the system of Supergrass trials in the North of Ireland whereby persons are convicted of serious crimes, mainly on the uncorroborated evidence of informers as being totally alien to both Irish and British Court practice and contrary to the principles in accordance with which justice is administered throughout the democratic world, and calls on the British Government to terminate these trials and to institute an independent review of all such cases which have resulted in convictions.”

This motion is signed by all members of the Fianna Fáil Party. This is a very [1470] important motion because we are debating the administration of justice affecting one of the most fundamental human rights, namely, the right to freedom. The system of supergrass trials in the Six Counties is unique in any western democracy. It involves persons, themselves convicted of serious crime, giving evidence on behalf of the prosecution, often without any corroboration, and this trial is held before one judge sitting without a jury. Many people have been sent to jail, some of them innocent, by one judge on the evidence of an informer without any corroboration and this is the cause of much concern to people who value freedom, and is the reason for this motion.

There is a tremendous difference in the law as it is operated in England and as operated in the Six Counties. In England, while accomplices are accepted as witnesses, their trials are always before a jury and it is incumbent on the judge to give a warning from the court about the danger of convicting a defendant on uncorroborated evidence, pointing out the danger of such evidence. In England if there is no corroboration, and if the defendant cannot be connected with the crime the defendant will be set free — not so in the Six Counties. If the judge does not give a direction to the jury about convicting somebody on the use of uncorroborated evidence, the case will be quashed in a higher court. This is mandatory on the judge.

We have a ludicrous situation in the North of Ireland. We have the Diplock Court with only one judge who is supposed to issue a warning to himself as to the danger of convicting on this type of evidence. This is totally illogical. Human nature being what it is, it would be impossible for one man sitting on his own in judgment to be able to rationally discuss with himself such warning as is given in the courts in England.

It is important in any trial that the witnesses should be credible. The witnesses, the informers, so far used in the supergrass trials in the Six Counties have not been credible. I will say a word about them later. Lord Gifford, QC, when [1471] speaking about the use of accomplices in trials in England said:

From the information available, there is no case in which it is clear that a person has been convicted on the evidence of a single supergrass, without corroboration from any other testimony.

This is totally different from the type of justice that exists in the Six Counties. He went on to say when speaking about the English system and comparing it to the system in the North:

However, if even in a jury trial system, the practice of basing prosecutions on supergrass evidence were to be revived on a scale similar to or greater than that adopted in London in the recent past, there would be a cause for grave alarm and need for detailed research.

He was referring to a number of cases in the early eighties where this type of evidence was used and where witnesses were offered immunity; although some of them were sentenced to jail terms, none of them served more than two years.

In the Six Counties it is mandatory that serious offences would be tried under the Diplock Court system before one judge and no jury, unless the Attorney General decides otherwise. A preliminary inquiry is normal in a magistrate's court but in most of the supergrass trials to date, this inquiry has been circumvented by the voluntary bill of indictment which allows the prosecution to have the case transferred without going through the magistrate's court, with the consent of either the Attorney General or the court. This means there is no preliminary hearing and, on the evidence of one supergrass, the defendants are held for a long period until they come to trial in the higher court. This has very serious consequences for the defendants because they spend long periods awaiting trial.

Let us look at some of those periods of waiting in a few of the supergrass cases.

[1472] In the Christopher Black case the defendants were arrested in November 1981, the trial started in December 1982 and ended in August 1983. This meant the prisoners were on remand for 21 months. In the case of Bennett, prisoners were arrested in May 1982 and the trial was not completed until March 1983, a period of ten months. In the case of McGrady, the date of arrest was June 1982 and the trial was not completed until October 1983, a period of 16 months. In the McGurk case the date of arrest was February 1982 and the trial was completed in October 1983, a period of 20 months. In the Grimley trial the defendants were arrested in February 1982, the trial started in September 1983 and was completed in November 1983, a period of 21 months. This must be a matter of grave concern to any right-thinking person because, in effect, it is internment without trial for many people. At present one defendant is awaiting trial on the evidence of a supergrass and he has been on remand for over 1,000 days. That certainly is internment without trial.

Two of the judges in the North, Mr. Justice O'Donnell and Mr. Justice Higgins, were reported in the Belfast papers on 9 July and 6 April last year as expressing concern at the length of the remand. Prisoners should be brought to trial at the earliest possible time and the bill of indictment used to circumvent the Magistrates' Court is a gross abuse of any judicial procedure, particularly in this type of case.

In the Republic, the evidence of accomplices has been accepted by the courts, but it is very important to point out that in our courts most defendants are still tried by jury. However, in the Special Criminal Court three judges sit, unlike the Diplock Courts where only one judge sits. In our courts the evidence is generally corroborated and we never have anything like the number of defendants that there are in the courts in the North.

The number of defendants who are charged on the evidence of one accomplice or informer without corroborating evidence is a matter of deep concern. In [1473] the Black case there were 38 defendants, in Grimley's case there were 22 defendants, in Gilmour's case there were 45 defendants, in the Budgie Allen case there were 22 defendants and there were 38 defendants in the Harry Kirkpatrick case. There were 28 defendants held on the evidence of Robert Lean on remand. He retracted his evidence, the case folded, but they had been held for some time — again internment without trial.

Prominent lawyers in the North, the UK, the US and indeed throughout the Western world have expressed the view that under this system the courts are being used as a political strategy rather than for the administration of justice. The informers are offered immunity and safe passage from Northern Ireland. Some of them have gone to prison but it is generally believed that they had already done a deal with the police.

In England none of them served more than two years and it is probable that something similar will happen in the North. The first case of an informer being used, not the highly sophisticated supergrass which we saw from November 1981 on, was in the case of O'Doherty and McCormick. McCormick was an RUC man and O'Doherty, who was a paid informer, gave evidence against him. In his summing up, Mr. Justice Murray said:

At the end of the long day my firm conclusion is that it would be highly dangerous and wrong to convict the accused of any of the crimes charged against him on the evidence of O'Doherty unless that evidence is supported by clear and compelling corroboration.

We all agree with that statement which comes from “Supergrasses — The use of accomplice evidence in Northern Ireland” by Tony Gifford, QC. Further on, Mr. Justice Murray said:

In conclusion I must refer to some very vigorous criticism of the police made by Mr. Boal. The Inspector in charge of the investigation made dozens of visits to O'Doherty in prison [1474] and Mr. Boal made the allegation that O'Doherty was being “schooled” in his evidence by the police. I think that the police action is open to criticism in the circumstances of this case but I am wholly statisfied in the event that no injustice of any kind resulted from it.

Nevertheless, the judge, recognised that the police evidence was subject to criticism.

In the trial of 16 defendants, another informer, Bennett, was referred to by the judge as a ruthless, resourceful and experienced criminal whose criminal acts extended to the use of his dead father's police uniform to carry out the daring armed robberies from which considerable sums of money were stolen and divided among himself and his accomplices. That is an indication of the judge's opinion of the type of person he was. The judge found that Bennett's dominant motive was that he could not face another prison sentence. Bennett believed that he had to name as many people as possible to ensure that he would get immunity. The only corroboration against the 16 persons charged in that case was that two defendants made remarks to the RUC which gave the impression of guilt. One defendant had a key to a yard where explosives were kept and another had a cylinder in the boot of his car which was similar to those used in a particular bombing explosion. In his evidence to the court, Bennett alleged that he received a cheque for £600 from one of the defendants but, under cross-examination and the cheque being presented to him, he admitted that he had not received it from one of the defendants, which is an indication that he had told lies. This is the type of evidence on which unfortunate defendants with no other evidence against them are being convicted. In that case Mr. Justice Murray said that Mr. Boal convinced him that Bennett had told lies. Mr. Justice Murray also said that he was sure that a man who had committed murder would not have scruples regarding perjury if it suited him. These are the sort of people whose evidence is sending others to prison.

[1475] Every defendant, except one, was convicted on the evidence of this supergrass. The judge said he thought there was a ring of truth in his evidence because of the detailed evidence regarding the offences and because the defendants were not able to produce an alibi. Some of these offences were alleged to have been committed ten years previously and it is very difficult to see how anybody could produce an alibi in that case. As regards the detailed evidence of offences, if Bennett was involved, obviously he could give detailed evidence. There are no substantial grounds on which one could accept that he gave good and truthful evidence on which anyone could be convicted. The annual report of the RUC came out at the same time and one of the comments of the Chief Constable was that the outcome of the case was crucial to the wellbeing of Northern Ireland. Justice Murray stated that if it was a jury case that in itself would be contempt of court. That is an indication of the whole rotten system of justice in the Six Counties.

In the case of Christopher Black, there were 38 defendants. They were arrested in November 1981, the trial began in December 1982 and went on until August 1983. Black himself had been guilty of perjury in 1975 for giving a false alibi. Again, the bill of indictment was used to circumvent the Magistrate Court and so hold all the defendants in custody for almost two years. He was granted immunity in November 1981, three or four days after he was arrested. Having been in prison before he did not want to go back to prison and thus he had a good motive for giving evidence to convict 38 defendants to ensure that he would have immunity for himself.

In that case Justice Kelly referred to him as a “brilliant witness” because of the detailed way he gave evidence. He said.

... he was one of the best witnesses that I have ever heard. By that I mean that he was one of the most convincing witnesses that I had heard in my experience in criminal trials and other trials. [1476] ...I thought his memory for the numerous complex and lengthy incidents and their participants was outstanding, quite exceptionally good, and this became progressively apparent as successive cross-examinations proceeded. Very, very many situations, conversations and comments he described in language and manner which suggested only truth.

Lord Gifford studied that trial very carefully and he was very concerned regarding the accuracy of the evidence. He believed the reason it was so accurate and why the witness was so brillant was because it was the result of a careful rehearsal with the police. In Black's case one defendant was convicted on the basis of one offence which was reported by Black nine months after the event took place. Black allowed that he had had taken an instant dislike to the man in question from the first time he met him. Again, that is the kind of evidence on which unfortunate people are being convicted without anything to corroborate it. Black accused one defendant of being on a training course but that person was able to produce 40 witnesses to show he was not on the training course at the time. Nevertheless, he was convicted.

In the case of McGrady, a number of defendants were arrested in February 1982 and the trial ended in November 1983 because the evidence was so absurd. Justice Gibson stopped the trial and he referred to the supergrass as living a pretence. This was a man with a psychiatric history whose evidence stood up for only three or four days in court and then the whole case collapsed. A number of defendants were held in custody from February 1982 to November 1983 as a result of the evidence of this man but when it came to court eventually the judge had to stop the case. In the case of Budgie Allen, two people were charged on the basis of his evidence. The above are just examples of some of the cases that have come to court to date. I visited Belfast and I attended the trial of Raymond Gilmore but as that trial is still going on I will not comment on it tonight.

The main reason why anyone would [1477] want to turn supergrass is to avoid a long sentence. In order to involve the maximum number of people the supergrass would play down his own role, particularly if the crime is murder. He might have a personal grudge against somebody and it is also believed that the police influence these people to name others whom the police want to arrest because they believe they might be involved in some crime. A supergrass also provides information for the police.

The nature of the individual and the nature of the inducements is very important. The whole matter of judges sitting on their own is also important because it does not lend itself to any particular kind of justice. The supergrass system is a new element in the whole administration of justice in the Six Counties and it is something that is deplored by Unionists and Nationalists alike. Sixty years of injustice have caused the alienation of the Nationalists not only from the system that exists but from the whole statelet or whatever one calls the Six Counties. There is a prison population there which is the largest in Europe — 164 per 1,000 compared with 35 per 1,000 in our jurisdiction. The question must be asked why there is such a large prison population. Most are young people who would go through life and never be involved in any kind of crime if they lived in any kind of normal society.

We on this side of the House are opposed to violence from all sources, let it be from the IRA, the UVF, the Loyalists or from the British Army. As a medical doctor I am more interested in healing than in the destruction of human life. There has been internment in the 1930s, the 1940s, the 1950s and also in the period 1971 to 1975. Police went to the same houses in each decade and arrested people who knew nothing about violence and who were never involved in violent acts. There were also the tortures carried out at Castlereagh and there was the Loyalist strike in 1974. All of these things helped to bring about this alienation.

It is accepted that the system of supergrass trials in the North of Ireland is totally alien to both Irish and British court practice. It is widely accepted, as [1478] the motion states, that that system of trial is contrary to the principles in accordance with which justice is administered throughout the democratic world. These two grounds are the two main grounds on which the supergrass system stands condemned, as it has been condemned at home and abroad by all those who sincerely wish to see fair, just and long-established court practice and procedures both here and in Britain upheld and the principles in accordance with which justice is administered throughout the civilised world preserved. We call on the British Government to terminate these trials and to institute an independent review of all the cases in which convictions have been secured through the operation of the supergrass system.

The amendment in the name of the Minister for Foreign Affairs states:

...Notes the damage which is being done to the legal and judicial system in Northern Ireland in the eyes of many in both sections of the community there by the regular reliance on uncorroborated accomplice evidence as a major feature of the prosecution system.

I find this amendment quite extraordinary. The fact that the Minister for Foreign Affairs should ask the Dáil to do nothing more than “note the damage which is being done to the legal and judicial system in Northern Ireland in the eyes of many in both sections of the community” is incredible. I should like to ask him if he really believes that the supergrass system is, as his amendment implies, acceptable to some sections of the Nationalist community or that is acceptable to all sections of the Unionist community. The evidence is there that it is not acceptable to either community.

The Minister's amendment carefully avoids the use of the word “supergrass” at all and instead uses the phrase “uncorroborated accomplice evidence”. It appears that the Minister and the Taoiseach have not learned very much from their recent trip to London and that they do not know much about the feelings of the people in the Six Counties. In [1479] conclusion, I ask the Minister to use his office and whatever power and pressure he can on the British Government to ensure that normal standards of justice will be applied throughout the whole of this island by applying them in the Six Counties.

Mr. Hilliard: I am very grateful to have the opportunity to speak briefly on the supergrass system being used in the legal system in Northern Ireland. A few months ago the concerned community organisation of Belfast, representative of professional and lay people, came to Dublin to meet the various political parties to express their sincere concern about the supergrass system in the North of Ireland. As a result I went on a two day visit to Belfast recently with two Fianna Fáil colleagues. We observed a morning session of the Raymond Gilmour supergrass trial.

It is obvious to me that, whether these trials are successful or not, many innocent people will be convicted on statements given by those supergrasses. These are complete mock trials and nothing else. It is another form of internment because many innocent people have been locked in prisons away from their families during the past two years awaiting trial.

Opinion in the legal profession is very clear regarding the supergrass system. They are very concerned about the whole thing because they know the legal system is being dragged down to a very low level. The people in general are very concerned and are losing any faith they had in the whole legal system in Northern Ireland. I say it is the duty and the responsibility of the British Government to act immediately to change the system. The only legal system is that which says you are innocent until proven guilty.

I will take the case of Mr. X as a clear example of the injustice of trial by supergrass, of which the British Government approve. I hope the Minister and the Government will take a serious interest in the whole affair and request the British Government to take the necessary [1480] action immediately to resolve these injustices.

Mr. X was 24 years of age in February 1982. He had no history of involvement in guerrilla activities whatsoever. In 1979 he married his wife Kathleen and they have two children, a boy and a girl. His daughter was six months old when he was arrested at 4.30 a.m. and brought to Gough Barracks in Armagh. On Tuesday, 9 February 1982 an RUC man came to the room in the barracks and asked the interrogators “Who is this?” One of them answered “Mr. X.” The RUC man turned back towards the other room and repeated the name, Whereupon a man, unknown to Mr. X, appeared at the doorway. The interrogators asked the newcomer “Do you know this man?” The man at the door nodded. They asked “Have you made any statements against him?” Again the man nodded. They asked “Are you prepared to give evidence against this man?” Again the man nodded. The newcomer was then led away.

That man was Patrick McGurk, supergrass, newly recruited. Mr. X was not the first victim of the new tactics. Mr. X was charged with possession of land mines at Ballygawley Road near Dungannon between 1 January and 31 December 1978. He was also charged with an arson attack on the Ulsterbus depot in Dungannon in May 1978. Mr. X made no statement while in custody and the only evidence against him were alleged statements made by McGurk. He was transferred to Crumlin Road prison in Belfast in custody for the next 21 months. There is no precise location for the alleged incidents. Ballygawley Road is at least ten miles long. There was no precise date given for the alleged incidents. There were no explosions and no casualties. There was never any evidence of a bomb. Such a charge that cannot be pinned down make an alibi impossible.

On 21 April 1982 Mr. X was brought up for bail. Under the Emergency Provisions Act, 1978, the conditions of bail are such that, instead of the prosecution having to prove that the prisoner would be a danger to society if released, the defence has to prove that he or she would [1481] not. As this is extremely difficult, very few prisoners are granted bail and it was not surprising that Mr. X was refused. He was returned to Crumlin Road prison and was remanded in custody again.

The next development was in September 1982, five months after the bail refusal, when the preliminary inquiry should have taken place. This is when the accused are faced by the accusers who have to give evidence against them in an open court, so that the court can decide whether or not there is sufficient evidence to merit a continuation of the proceedings.

The surprise was that there was to be no preliminary inquiry as Lord Chief Justice Lowry had granted a bill of indictment to the Director of Public Prosecutions the night before. This dispensed with the preliminary inquiry. Mr. X and others who stood in the courtroom that morning were returned to Crumlin Road prison and so rests the future of Mr. X. This is one of the many examples of the injustice of the supergrass trial system in Northern Ireland of which the British Government approve.

Minister for Foreign Affairs (Mr. P. Barry): I move amendment No. 1:

To delete all words after “Dáil Éireann” and substitute the following:

“notes the damage which is being done to the legal and judicial system in Northern Ireland in the eyes of many in both sections of the community there by the regular reliance on uncorroborated accomplice evidence as a major feature of the prosecution system.”

I am glad to have an opportunity to speak in this debate. The contributions made by Deputy O'Hanlon and Deputy Hilliard were very interesting, except for the last few regrettable minutes of Deputy O'Hanlon's contribution. Otherwise they were extremely good. I am seriously concerned about the way in which the supergrass trials have been used in Northern Ireland. I have outlined this concern in [1482] detail to the former Secretary of State for Northern Ireland, Mr. Prior, and the present holder of that office, Mr. Hurd. On many occasions on my behalf my officials have repeatedly stressed the same concern. I will go into detail in a moment as to why I feel I have to oppose this motion. I should like to outline in detail the reasons why I am worried about the way in which this system has been used, but first I should like to put this whole question into its proper context.

What we are discussing tonight is one feature of the present system in Northern Ireland. It is an important and difficult issue but it is one problem among many. I have personally raised and pressed a whole range of such issues both in public and in private with the British authorities as have my officials, on my instructions, and this is very well known. I shall continue to do so because I believe we owe it to the people of Northern Ireland to ensure that, even under the present system, their grievances should be attended to and redressed. I believe that the British Government owe a far greater responsibility to the people of Northern Ireland in this sense and I believe they owe it to themselves for even the most selfish reasons to ensure that the alienation which exists in Northern Ireland on a large and threatening scale is checked and is reversed.

I was taken aback by a letter in one of our newspapers today which suggested that it is somehow in our interest that alienation should get worse. “Surely”, the writer suggested, “from the Irish' nationalist point of view, alienation from British Government in the North is a good and highly desirable thing — the more of it the better. Why seek to end it? Wouldn't ending it, or even lessening it, mean an increase in loyalism, and how can nationalists possibly want that?”

This extraordinary approach seems to me to expose a grave question which we must face head on. Do we see alienation as a means of securing our national aims, in other words, do we see it as a weapon in our ideological arsenal? If so, then by all means we should work to make it worse as the writer seems to suggest.

[1483] I protoundly disagree with this approach because it seems to me to be utterly callous and inhuman. It fails to take account of the overwhelming reality which is that alienation equals intense human misery and anxiety. Our commitment to the people of Northern Ireland and the principal reason why we constantly press the problem of aleination in our contacts with the British Government at all levels is that our concern for Northern Ireland is a concern for human beings first and last. We are not playing ideological games with the lives and the happiness of innocent people and we will not do so.

Our point of departure is expressed perfectly in the first of the Realities identified by the Forum:

Existing structures and practices in Northern Ireland have failed to provide either peace, stability or reconciliation. The failure to recognise and accommodate the identity of Northern Nationalists has resulted in deep and growing alienation on their part from the system of political authority.

Our desire is to create peace, stability and reconciliation in the lives of ordinary men, women and children. It is not to win an ideological contest with the Unionists, a diplomatic contest with the British, or even a political contest in this House.

The use of uncorroborated accomplice evidence — supergrass evidence — in the way this has developed in the past three years in Northern Ireland is extremely worrying and I believe it calls for a major reappraisal by the British Government. Nevertheless, it is not an absolute black and white issue as the resolution suggests and I have to ask, with all the sincerity and goodwill at my command, that all the Members of Dáil Éireann give this issue the most careful and responsible consideration in this debate.

It is very important, in Anglo-Irish relations and in our relations with the two sides of the community in Northern Ireland, that the Irish Government and Dáil Éireann be seen to take a measured and responsible view of this problem. [1484] That is why I am asking the House to support our amendment rather than the resolution.

I do this in the context of two basic facts. First, the policy of the Irish Government towards Northern Ireland is based squarely on the Report of the New Ireland Forum. We believe that there will not be peace, stability or reconciliation unless the basic principles of the Forum Report set out in the Realities and Requirements are implemented. We have made it clear that we believe this will necessarily involve the transformation of the political, security and judicial systems in Northern Ireland. All of these issues were discussed between the Taoiseach and the British Prime Minister and they will continue to be discussed in the months ahead, as the Taoiseach and the Prime Minister reaffirmed yeaterday. Our object is to secure agreement on this basis.

Second, pending the establishment of new arrangements, it is the responsibility of the Irish Government and of Dáil Éireann to ensure that whatever measures are necessary are taken to protect the people of this State from attack and from insecurity. We also have a moral responsibility to ensure that the people of Northern Ireland are not, through our actions, omissions or words, killed or terrified. There are many aspects of the system under which they live which are unacceptable to us and unacceptable to large numbers of the people of Northern Ireland. We are working to transform those structures. Meanwhile we will not fail in our responsibility to their human rights and concerns.

I would now like to give the Dáil some important background facts on the way in which the present pattern of the use of supergrass trials developed in Northern Ireland. I shall start with the case mentioned by Deputy O'Hanlon, of Christopher Black.

In November of 1981 Christopher Black was arrested by the RUC. He agreed to inform on his former accomplices and so began a series of trials which came to be called the “supergrass” trials. The trial of those charged on Black's [1485] evidence opened in December of the following year, 1982, and lasted until August 1983, when 35 persons were sentenced to prison. The only evidence against many of those sentenced came from Christopher Black uncorroborated by any independent evidence, either of a forensic nature or otherwise.

Since that time over 20 informers have come forward. They came from diverse backgrounds. Some claimed to have been members of the IRA, others of the INLA, while there were some who were members of the UDA or the UVF. They all had one thing in common. They were, and are, prepared to inform on their former accomplices.

Their motives for doing this are not simple, nor are they necessarily the same in all cases. For some it has been a wish to avoid imprisonment. In one trial the judge said of an informer that he could not face going back to prison and that he believed his only chance to escape was to pass information and give evidence. That particular informer was granted immunity from prosecution because, in effect, he helped the police to obtain convictions against his former colleagues.

In other instances the primary motivation of the informer seems to have been the promise of a new life. They may have been helped to reach this conclusion by financial inducements of one kind or another.

Mr. D. Gallagher: Paid for by the British Government.

Mr. P. Barry: There may also be a religious element and there are instances where informers have claimed to be motivated by a change of heart leading them away from their former paramilitary activities.

There are a number of features about these informer trials which, taken together, are a cause for very grave concern. Firstly, there is the nature of the evidence itself. I should stress that the uncorroborated evidence of an accomplice is admissible in law in the Irish courts. That is one of the main reasons [1486] why I could not accept that the system is to be condemned without qualification. In our system and, indeed, in the British system, because it is always desirable to have corroboration of evidence, especially in a criminal trial when the evidence is given by an accomplice, the judge must warn the jury that while they can convict on such evidence, it is unsafe to do so. In Northern Ireland the informer trials are held in the co-called Diplock Courts where only one judge presides without a jury. The judges in these trials are aware of the dangers of convicting on uncorroborated accomplice evidence. The absence of a jury, however, raises particular difficulties, especially when only one judge hears a trial, a jury being the most desirable safeguard when uncorroborated accomplice evidence is presented.

Secondly, the evidence of an accomplice is tainted almost by definition. That taint is slight where an accomplice has nothing to gain. In some of the informer trials in Northern Ireland the accomplice informer had very much to gain, either by way of immunity or by way of financial inducement and the promise of a new life. In such circumstances, the possibility of tainted evidence is increased and the danger of a miscarriage of justice all the greater.

A third feature common to many of the informer trials is the large number of defendants in any one particular trial. Leaving aside those informers who have retracted their evidence, there are three cases in which the number of defendants exceeds 30 persons, while in almost all of the remainder anything between ten and 30 persons are charged. This creates a difficult problem for the judge, who with so many arraigned before him on the word of one informer, may well find it exceedingly difficult to adjudicate on a whole welter of facts. It also creates major difficulties for the law officers and for the legal system in general when there are large numbers of defendants in one case.

Perhaps the most dubious factor of all [1487] is that the use of uncorroborated accomplice evidence seems now to have developed into a system and its systematic use to have become a dominant feature of prosecution in the Diplock Courts. In addition, it is widely held that the police are strongly motivated to seek accomplice evidence in many cases.

Now there are important considerations which can be advanced to justify the use of such a system in certain cases. These considerations include very basic concerns for the lives and safety of innocent people and I would ask Dáil Éireann to give them the most serious attention. These considerations are among the reasons why I cannot agree that the system can be condemned absolutely without qualification and why I am asking all sides to support our amendment rather than the original resolution.

Firstly, we must face the realities of Northern Ireland today and the circumstances in which justice is administered. We know very well, not alone from Northern Ireland but from our own experience here, that witnesses have been intimidated and are afraid of coming forward because of the savageries inflicted on them by the paramilitaries of both sides. Judges have been attacked and both they and their relatives have been murdered. In such circumstances is it any wonder that resort is had to evidence of this nature?

And let us not forget that in recent times three Catholics have been killed just because they were Catholics, bringing the total number of Catholics killed by Loyalist assassins since the early seventies to over 400. The fears of ordinary innocent men, women and children that they may be killed or their homes attacked for no other reason than that they are Catholics are once again revived. If the use of accomplice evidence serves to put these sectarian murderers behind bars and to help to allay the fears of the innocent, is there anyone in the Dáil who would object? At least 32 Loyalists have been found guilty of very serious crimes, including sectarian murder, because their [1488] former accomplices chose to inform on them. We should not forget that.

Innocent Protestant people are also being terrified, attacked and murdered. In the Border areas especially, a campaign is being waged against them which is little short of genocidal. The plight of these people is and must be our serious concern. I do not believe that the Members of Dáil Éireann, for all our serious concern about supergrass trials, would oppose their use in the bringing to justice of the murderers of the innocent who died in the infamous slaughter which took place in Darkley Pentecostal Gospel Hall a year ago.

Nor should we forget what is happening within the Nationalist ghettoes. There the IRA spuriously claim to be the protectors of the Nationalist people. In reality, they are prepared to injure and to maim, indeed even to kill, those who they say are guilty of crime. Did they give their victims a fair trial? Did they even give them a hearing, not to mention providing them with a jury or even a judge? The unfortunate victims have no more chance and no more choice than a beast in a slaughter house. We cannot close our eyes to the fact that dangerous men deeply involved in the IRA and in the INLA have been locked up because their former associates decided to inform on them, nor can we ignore the severe damage done to the paramilitaries in certain areas as a result, We can only be relieved that this is so.

Why then am I seriously concerned about the way in which supergrass trials are being used? Firstly, because of the extent of the practice. It is a device which should be used as sparingly as possible and only in the most exceptional of cases, especially in the absence of juries. In Northern Ireland it has become a major feature of the legal system, is used in a systematic manner, and on occasions can involve a very large number of defendants. The pressures on the police to produce an accomplice and on the accomplice to produce the evidence, as well as on the judges, who in Northern Ireland are called upon to bear a very heavy burden, have produced strains on the [1489] legal and judicial system. In my view that system, which is essential to the wellbeing of any society, is being damaged by the regular and over-reliance on uncorroborated accomplice evidence.

Secondly, the over-reliance on the use of informers has led to very great delays in the length of time those accused spend on remand before they come to trial. That is a point which was made by Deputy O'Hanlon who quoted the case of one man who was almost a thousand days waiting for trial.

Thirdly, I am concerned that claims can be made that the regular use of uncorroborated accomplice evidence represents a new administrative alternative to internment. Such claims are only reinforced when bail is refused, as it is in very many cases, to those who are held on remand, even if they have been in custody without trial for a very long time. I had occasion recently to raise one such case with the British about which I was particularly concerned, and indeed my interest was mentioned by the judge in court when he was referring the case to the Chief Justice of Northern Ireland. In this instance, the person has been held on remand for over 33 months on the evidence of five successive informers, three of whom retracted, the evidence of the fourth having been dismissed by the judge in court. That person was charged last September on the evidence of a fifth informer and his case could go on until the end of 1985.

An Leas-Cheann Comhairle: The Minister's time is up.

Mr. P. Barry: I think that I have made most of the points that I wanted to make, except that, in the end, I want to come back to the Forum Report to which most of the parties would subscribe, which is the policy of the Government.

Mr. L. Fitzgerald: I think that the Minister should be given extra time to finish.

Mr. P. Barry: I thank the Deputy.

[1490] Fourthly, there are serious risks involved in the use of informers which, I believe, are all the more dangerous because of the divided nature of society in Northern Ireland and because of the polarisation which exists between the two communities. At best it is essential to be extremely cautious about the use of uncorroborated accomplice evidence. At worst over-reliance on its use as a regular element in prosecutions leads to the undermining of the whole legal and judicial system and to the alienation from that system of significant numbers of people. The frustration with the supergrass system is not confined to the minority in Northern Ireland but is shared by a significant number within the majority community.

I come back to the Forum report, which most of the parties in the Dáil subscribed to and which is the policy of the Government. That must continue to be the primary focus of our attention. I should like to use this opportunity to express on behalf of the Government our deep appreciation of the courageous solidarity shown by the SDLP in difficult circumstances in their statement issued last Saturday. For my part, I would now like to invite the Opposition to join us in the same solidarity in our continuing effort to make progress in the exchanges which will take place with the British Government so as to secure peace, stability and reconciliation throughout this island.

Mr. L. Fitzgerald: While it was not my intention to deprive the Minister of the opportunity to make a full contribution I was hoping there might be a late conversion. I am extremely disappointed with the wording of the amendment and believe that it will condemn the Nationalists and Unionists to a continuation of the supergrass trials for some time to come. It is regrettable, harmful, damaging and sad for the Dáil that the Minister, despite a number of very strong expressions he made——


[1491] Mr. L. Fitzgerald: I am sure Deputy Skelly will have an opportunity tomorrow evening, if they have confidence in him, to speak on this aspect. In view of the number of statements the Minister made he could quite clearly have come forward and endorsed our motion. However, he is couching his views in wording which is vague and which can only be referred to as milk and water. It is very sad for the Nationalist community in Northern Ireland.

At the end of his speech the Minister asks us to join in solidarity with the Government. Earlier he justified the wording and framework on which his amendment is based. He referred to the policy of the Government towards Northern Ireland and said it was based squarely on the report of the New Ireland Forum. If we could honestly believe that that situation still obtained there would be some scope for us to show our solidarity with the Government. I have very little confidence in the Government with regard to their serialisation of that very important and unsurpassed document known as the New Ireland Forum report. Irrespective of the Minister's views about violence — they are shared by all sides of the House — there can be no settlement in Northern Ireland within the existing boundaries. Most of the terms and conditions laid down in his speech are couched along the lines of an internal matter. I disagree with him on that.

In relation to his statement that there are a number of features about these informer trials which, taken together, are a cause for great concern, he points to the fact that uncorroborated evidence of an accomplice is admissible in law in the Irish courts. However, we all know that in the Irish court system uncorroborated evidence is very rare. It is not part of an overall system. The Minister will agree with that. On the rare occasions when it is presented, used or admissible, it is admissible to three judges, not one. This is a very important distinction which the Minister should have highlighted and put unequivocally before the House. He did not. I regret his failure to call for a commitment from the British Government [1492] to ensure that at least three judges will always be provided in the case of such hearings. It is essential that the Dáil unequivocally condemns the system of supergrass trials.

Mr. Allen: The Minister said that.

Mr. Skelly: The Minister condemned it in his speech.

Mr. L. Fitzgerald: We should call immediately on the British Government with a united voice to do so. Unfortunately we do not have a united voice tonight. We should call on them to permit an independent review of all cases which have resulted in convictions. This is the basic fundamental stance that Dáil Éireann should have adopted in a unified manner.

Britain has always seen the problem of the North as a law and order one. For the past 15 years she has seen herself at war with the Nationalist community there. The supergrass system is an administrative process feeding off Unionist prejudice rather than a judicial process. It is a deliberate act of exploitation of the legal system by the RUC and the British authorities and is best exemplified by the use of uncorroborated evidence in a systematic way. The charging of suspects irrespective of evidence is widespread. The deliberate and calculated avoidance of preliminary hearings in a number of instances has assisted the re-introduction of a form of internment without trial.

Northern Ireland for the most part is a land of lawlessness, alienation, injustice and human degradation. Distrust is deep and very pervasive as elements of security, both legal and judicial, are exploited to the very last in order to subjugate the Nationalist minority to the interest of the war effort. The fabric of society has irretrievably broken down in many cases and some of those still ritualistically applying the code for their British lords are doing so with considerable tongue in cheek.

It is a well known fact in the legal circles in Northern Ireland that the Lord Chief Justice, Lord Lowry, has strong [1493] reservations about the supergrass trials system. Many consider him to believe that the British and the RUC intelligence have gone too far this time. Not alone is the present system distasteful and undignified but he is believed to consider that it falls well below acceptable judicial standards in any democratic system. We would all agree that is very much the case. He is said to fear that it will do irreparable damage to the judicial and legal systems in the North. Yet he, like others, is compliant in administering the corruption. Brigadier Frank Kitson, now a general and commander of UK land forces, as part of his annual report on strategy for anti-subversion said:

“the law in Northern Ireland should be used as just another weapon in the Government's arsenal and in this case become little more than a propaganda cover for the disposal of unwanted members of the public.... The activities of the legal services have to be tied into the war effort in as discreet a way as possible”.

This quotation along with others I have come across, which are very frightening, are to be found in Low Intensity Operations by Brigadier Frank Kitson. The wording of that statement speaks for itself.

Northern Ireland from its very inception has been an unstable, incongruous and a most unreal political entity. Yet because of the overwhelming dominance by the Unionist tradition successive British Government have been able to allow them to rule as they wish, irrespective of injustice or corruption. However, the inevitable eruption of political violence in 1969 and the turmoil it has sustained since then have caused the British to react in a number of ways. They have tried a saturation of military operations and internment without trial. Finally, they have settled on the invocation of emergency laws, devising a special judicial process for politically motivated crimes as part of the overall political strategy. The judicial process which replaced previous systems became known as the Diplock Court system, and Deputy O'Hanlon has [1494] referred at length to it. Among its features are the abolition of juries and their replacement by only one presiding judge. There is a lack of prosecution witnesses and there are long periods of remand in custody. More recently the strategy adopted in addition to these features has been that of recruiting large numbers of supergrasses who would go before the courts and make statements implicating people in military operations and conspiracies. As the erosion of the due process continues there has been a vigorous stripping away of all impediments to executive convenience in Northern Ireland.

Perhaps this is best exemplified by the following legal changes. Arrested persons may now be held for questioning for up to seven days. The liberal rule of the common law in relation to inadmissability of evidence has been turned on its head. The statutory requirement now is that confessions be admitted in evidence unless they have been shown to have been obtained by torture, inhumanity or degradation. If we examine statements by Mr. Justice McGonagle and other justices in Northern Ireland as to the definition afforded in criminal law, the scope for inducement and for a certain roughness of treatment, to use Mr. Justice McGonagle's own words, is adequate and quite significant.

Perhaps the easiest way to illustrate this is by reference to my own observations during the two hours I spent with my colleagues, Deputy O'Hanlon and Deputy Hilliard, at the cross-examination of Raymond Gilmore, supergrass, by Desmond Boal, senior counsel for the defence at Belfast Crown Court on Tuesday, 6 November of this year. Deputy O'Hanlon, Deputy Hilliard and I went to observe these trials because of increasing concern within the Fianna Fáil parliamentary party regarding their operations. What I saw and heard left me shocked and saddened. The court procedures themselves were extremely intimidating even to a detached observer. On entering the courtroom we were confronted immediately by crowds and uniforms. A large number of people, [1495] male and female — the accused — I understand about 45 in total were being tried together — had been charged with mostly unrelated crimes and all on the word of this one man, Gilmore.

The positioning of the supergrass in the courtroom was very significant because he sat facing Lord Chief Justice Lowry who was presiding, and replies to questions from the defence counsel were directed to the judge, not to the counsel or to the court at large. It seemed a subtle way to protect a Crown witness, perhaps with some degree of justification, from intimidation from the general body of the court, but the contrivances were very interesting. I must confess that I am commenting on a case which is at present in progress. I found that Gilmore's answers were riddled with inconsistencies, self-contradictions, retractions and altering of existing evidence, and in many instances he claimed not to understand questions put to him in the simplest English by defence counsel. There seemed to me to be a very clearly rehearsed strategy to frustrate the process of defence counsels' cross-examination, yet all the allegations continued to be made by Gilmore against the people whom he named, even though over a short two-hour period the times, places and dates in relation to these crimes that were alleged to have been committed seemed to be constantly changing. Even without referring to this man past record, I had to conclude that most of what he said bore little if any resemblance to the truth, whatever that truth might be, yet his statements of indictment were allowed stand on the record. I came away from that court hearing shocked that any democracy would permit such a legal farce, yet I could be assured by many of the senior counsel and legal people present that the system had worked well over the previous two years in fulfilling its objectives so aptly described by Brigadier — now General — Frank Kitson.

In the two-year period 1982-84 the number of people charged on the basis of supergrass evidence — most of these people were remanded in custody — [1496] superseded the number of people interned in the original swoop in August 1971. The 27 supergrasses — there were 29 altogether — who came forward between 1982 and 1984 named 477 people in their evidence. The use of uncorroborated evidence along with other practices in the taking of evidence here surely must be examples of standards of evidence which are alien to any other system of justice in a Western democracy. The uncorroborated evidence of an informer or supergrass is the word of a supergrass and nothing else. When one takes into account that all the supergrasses had had a number of previous convictions, in many cases for involvement in and accomplices to murder, explosions and other forms of conspiracy and that in nearly all cases they are serving long sentences — I believe in all cases except one where a religious conversion was claimed —when they decided to turn Crown's evidence, this practice assumes a more sinister dimension. The Christopher Black trial judge, Mr. Justice Basil Kelly, described Black's primary motive for agreeing to work for the RUC. I quote from Mr. Justice Kelly at the opening of that trial: “He could not face going back to prison and he believed his only chance to escape was to pass information and give evidence.” Lord Tony Gifford, Queen's Counsel, to whom Deputy O'Hanlon has referred in many instances during his speech, was a member of the Cobden trust and studied the supergrass trials in depth. He made the following statement in relation to the Christopher Black trial: “I think it highly probable that the brilliant impression which Black made was due, in part at least, to a careful process of rehearsal between him and the police.” He went on to say: `The amount of detail in his statements is indeed phenomenal.”

Another aspect of the Black trial was that Tobias McMahon was named by Black almost eight months after Black had made his initial statements to the RUC. He had remembered suddenly that McMahon was a senior IRA officer. All this time Black was in the custody of the RUC, and everybody would have been [1497] very anxious to have identified a person involved in illegal activities, but it strikes one as curious, to say the least, that it took eight months for a person now being put forward by the Crown to recall that he knew a certain individual to be a senior officer in an illegal organisation whom he was so anxious and willing to expose.

Defence lawyers in Northern Ireland have often argued very emphatically the reasons why it is dangerous for a court to convict on the evidence of a supergrass, even when that evidence is corroborated by evidence from other sources. As has been demonstrated in so many cases in Northern Ireland, the supergrass will have been a participant in crimes of which his alleged former associates are being accused by him. He may have been a perjurer in previous courts. At least one of the supergrasses in question admitted openly to a justice that he had previously perjured himself in a court presided over by that same justice. The supergrass may be motivated by the fact that he has been promised immunity from prosecution or promised financial reward and he will therefore be willing to give the sort of evidence the police expect him to give. In connection with the police influence on informers, there is a danger that the police themselves suggest the names of the people whom the supergrass should identify and indict.

This danger is all the greater where it is becoming increasingly difficult for them to obtain evidence, particularly of a corroborative nature. For example, Robert Lean, a supergrass who retracted his evidence, said he was supplied with photographs of men whom the RUC wished him to name. He was given statements of terrorist acts, all of which he alleged were written by the police.

Father Denis Faul and Father Raymond Murray have listed several reasons as to why the evidence of supergrasses should not be accepted. They state that supergrasses have a unique opportunity to pay off old scores, that they can name persons they have fought with and persons whose business they covet or wish to ruin.

The nature of supergrass evidence, the [1498] role of the RUC both in procuring informers and in compiling the evidence, what is known of the personal character of supergrasses generally and the extremely doubtful validity of statements and confessions all raise very disturbing questions about supergrass trials.

Another practice of evidence taking which I suggest is totally improper is referred to in a statement by Peter King, an American criminal lawyer and an aide to Senator d'Amato, who came to the North to study the supergrass trials. He said at a press conference on 7 October 1983 during a visit to the North:

I notice in Court this week that you had defendants who were questioned day after day, after day, who didn't answer any questions, which was their right to do so. And yet the police were allowed to read the questions which they asked the Defendants into the Court records....

He went on to say:

Now there is no reason why any of that should be read and there is no evidence for any of the allegations made in the questions, and yet that is being put into the record. It is being brought to the judge's attention, putting it into the judge's mind, what the police think they have on this defendant. This is improper, none of this should be allowed.

Another related feature to evidence taking is found in the Bennett supergrass trial where the Chief Constable of the RUC, Sir. John Herman, stated as part of his annual report:

On this matter there is much at stake both for the terrorists and the community. The outcome is crucial to the wellbeing of Northern Ireland and it is essential that there should be a general understanding of the facts.

On that occasion Mr. Justice Murray accepted that in the case of a jury trial this interference would have amounted to contempt of court. However, he claimed not to be influenced by the statement. But when one looks at all these features [1499] of evidence taking in the North in the context of the most profound change that has taken place in a judicial process, that is, the abolition of the jury in all scheduled offences, and their replacement by a single judge as the sole arbiter of fact, it is inconceivable that he would fail to be influenced by such material. The exercise whereby a judge at the opening of each judgement states publicly that he is warning himself that it is dangerous to convict on the uncorroborated evidence of an accomplice is nothing more than ritualistic nonsense. How can we accept that in any way it assists or enables a judge to cast from his mind evidence that has been permitted to be put before the court and put on the record time and again and which in any court in any democracy which puts a value on fairness or balance would be dismissed?

The use of supergrasses especially in the numbers in which they are being used today in the North has meant at times the abolition of another legal safeguard — the preliminary hearing in a magistrate's court. The purpose of a preliminary hearing is to determine whether there is a case against an accused person and whether he should be sent for trial to a criminal court. By obtaining what is known as a voluntary bill of indictment, the Director of Public Prosecutions in Northern Ireland can avoid the preliminary hearing and proceed directly to the trial in the Criminal Court. The word “directly” should not be misinterpreted as being synonymous with “immediately” as Patrick Kelly of Dungannon discovered to his horror after being arrested in February 1982.

From the evidence available from all sources within Northern Ireland, this young man was not found to have been in any way associated with paramilitary or subversive activities. He was refused bail initially in April 1982. The preliminary inquiry was scheduled to be heard five months later. The main charge against him was extremely vague. However, the preliminary hearing would have decided if there was sufficient evidence to merit the continuation of proceedings.

[1500] Lord Chief Justice Lowry in his wisdom, though that wisdom is rather baffling, had granted a bill of indictment to the Director of Public Prosecutions on the night before the preliminary hearing was to have taken place. Patrick Kelly was returned to Crumlin Road jail to be detained there until 24 October the following year on which date all charges against him and others held on the alleged statements of the supergrass, Patrick McGurk, were dropped. All were found not guilty.

By then Patrick Kelly and the other people concerned had spent 20 months in prison on the word of an accuser who had never been produced by the RUC and who claimed on his release that at no time during those 20 months had he intended to testify in court against any of the accused.

Patrick Kelly was 24 years old on February 1982. He had no history of involvement in any form of guerrilla activities. He had worked as a wages clerk prior to his arrest. His life was ruined. He had lost his job. He had no recourse to take on the State and I understand that to this day he has failed to be re-employed. His story is one of the many tragedies borne out of 15 years of British repression and criminal political blundering in Northern Ireland.

I have said already that the operation of the supergrass system within the framework of the Diplock Courts and emergency powers is an administrative process feeding off Unionist prejudices rather than being a judicial system. Perhaps this is best exemplified by reference to a conversation I had with a senior counsel of long standing in the main hall of Belfast Crown Court after observing the Gilmore cross-examination on November 6.

For a period of from 30 to 45 minutes my colleagues and I spoke individually with a number of senior counsel and solicitors. One of these people who was of the Unionist tradition and who had served as a senior counsel for many years was anxious to engage me in discussion of the proceedings I had just observed. I spoke frankly and told I found the entire [1501] scenario incredible, that the witness seemed to have no credibility left and that I found it impossible to imagine how Chief Justice Lowry could find anyone guilty on the basis of Gilmore's uncorroborated evidence. I asked for the comments of that senior counsel. He said that he believed all the accused would be found guilty. He said, “OK, so the Crown witness seemed to manifest crookery and other traits of that nature but had he not told the RUC where to find an ammunitions dump and had he not given two other accurate pieces of information to them?” My friend went on to say at least that gave the witness some credibility in the eyes of the justice. He said, “Anyway, were not 80 to 90 per cent of the 45 accused guilty and was that not all that mattered?” That is a true and accurate account of the conversation that took place on that day between that senior counsel and myself. I judge the sentiments he expressed to be a chilling indictment of the system that was so ruthlessly portrayed. The Unionist RUC are policing nationalists. They are looking after nationlist prisoners. Unionist judiciary are sitting in judgement over nationalist suspects. This has facilitated the operation of the process.

To take an example of the judiciary side, while there are many to whom I could refer, Justice Robert Babbington, Unionist MP for North Down in the late sixties and early seventies and who was a fierce opponent of the civil rights campaign said, when he was fining a member of the Loyalist Tara Group £600 for possession of ammunition and firearms components——

An Ceann Comhairle: Will the Deputy please move the adjournment?

Mr. L. Fitzgerald: Could I just give the quotation? It is:

“Considering the state of affairs in Northern Ireland, one would not be surprised if persons did find it incumbent upon them to seek the oddest kind of solution to the problem, in desperation.... I am satisfied that [1502] you felt strongly, clearly and honestly, that you were behaving as a good patriot should.”

I put it to this House that the Government——

An Ceann Comhairle: Will the Deputy move the adjournment?

Mr. L. Fitzgerald:—— should withdraw the amendment and unanimously endorse our motion.

Debate adjourned.