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9 June 2005 Edition

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The Morris Report - Before and After BY CORMAC J BREATHNACH

Nicky Kelly and Osgur Breatnach

Nicky Kelly and Osgur Breatnach

Imagine the following scenario: A man is arrested and charged with robbing a train. He maintains his innocence but is faced with extreme brutality by the investigating police.

Along with his co-accused, who suffered the same fate, he claims to have been beaten in police custody and forced to sign a statement admitting his part in the robbery.

His defence is rejected by the investigating court after two long trials. The same court accepts the perjured evidence of more than 40 police and imposes on him and his co-accused lengthy prison sentences: they appeal against their convictions and are successful. However, he appeals against his conviction and is refused as he is out of time; later, the Supreme Court affirms said refusal.

Years later, after many hunger strikes and much public pressure he is reluctantly released by the government of the day. Many more years later and in ill health he is granted a Presidential Pardon. He is some time later awarded substantial monetary compensation, all of which clearly impacts upon the new government of the day, which is determined to grasp the nettle and learn from the lessons of the past.

It therefore instigates an independent public sworn inquiry into: (a) the circumstances that led to the clearly false admissions of guilt and (b) how the judiciary could have allowed this to happen and (c) why police members were encouraged/allowed to lie under oath by their superiors and (d) why successive past governments encouraged/allowed such illegal acts to happen by the guardians of the State.

Yeah, right! I hear you saying. I assure you all of the above did happen in this jurisdiction from 1976-1992/3 except for the willingness of the Fianna Fáil-led government to learn the lessons: in contrast, no Inquiry was set up. There were no such calls either by the opposition parties for such an Inquiry. There were no sanctions imposed on, or disciplinary action taken, against the Gardaí.

The brief summary outlined above of what happened to one man, Nicky Kelly, also involved to varying degrees my brother, Osgur and Brian McNally (whose convictions and terms of imprisonment were quashed by the Court of Criminal Appeal). Two bestsellers were written about this appalling vista, Round Up the Usual Suspects (Gene Kerrigan and Derek Dunne) and Blind Justice (Peter Murtagh and Joe Joyce) preceded and followed by thousands of articles and letters and coverage in the media. Amnesty International covered this case from 1977 to 1992.

None of the factual matters or allegations made in either of these two books and Amnesty's World Reports were ever challenged. Therefore, it must be assumed they are correct.

Judge Morris' second damning Report does not come as a shock to my family, or to the families of Kelly and McNally (ie the Sallins Three). Sadly, it takes two Reports from Morris before our government begins to wake up to the national disgust of what happened, or could have happened, to the McBrearty, MacConnell and other families.

We have been appealing over and over again for a thorough and transparent investigation into the facts and surrounding circumstances that led to the wrongful imprisonment of The Sallins Three.

All the main political parties of that time share an equal blame for the miscarriage of justice. The "law and order" Fine Gael-Labour Coalition (1973-1977) oversaw the circumstances that lead to the men's arrests and trials. The Fianna Fáil party, then in opposition, expressed grave disquiet about the Garda "Heavy Gang" but later in power in 1978 with an overall majority did nothing. It decided instead to allow The Sallins Three to be convicted.

The many changes in government in the 1980s kept the lid on this can of worms. We accuse these governments of engaging in a consistent and deliberate cover-up, and of granting those gardaí who engaged in corruption apparent immunity from prosecution.

In its 28 April 1992 statement granting pardon to Kelly and exonerating (sic) Breatnach and McNally, the then Minister for Justice, after consultation with the Attorney General and the DPP was "satisfied that any further enquiry into the circumstances of the case would be unlikely to produce any clearer resolution of the issues that arose in it". This translated to us as meaning: "Don't worry Gardaí, we realise you have a difficult job to do and mistakes can be made so we will continue to indemnify you but we must pay the men compensation in the hope that this will put an end to this can of worms so that no member of the Gardaí will ever have to become accountable."

The following day, on RTÉ Radio 1, my brother told David Hanly that nothing had changed to prevent another miscarriage of justice happening. Possibly he was contemplating that those Gardaí involved in the Sallins case were all promoted to high-ranking positions in the police force.

Twelve years later, in his first Report, Judge Morris at page 525 poses the alarming question: could it ever happen again? He warns society:"If there is a lack of proper management at senior level, corruption at middle level and a lack of review throughout the (police) force, then it is certainly possible that in similar circumstances similar corruption could arise."

It is high time we had an Ombudsman with like powers as Nuala O'Loan. Scrap the Garda Bill!

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