O'Malley argument cuts both ways, say legal experts

For weeks, Mr Des O'Malley, with a researcher and a senior counsel, laboured hard amid the Arms Trial's records, now held in …

For weeks, Mr Des O'Malley, with a researcher and a senior counsel, laboured hard amid the Arms Trial's records, now held in the National Archives, to defend his political legacy. Yesterday, a detailed text emerged, sharply argued, if occasionally self-righteous.

Yet it raises as many questions as it answers. If anything, it highlights the pointlessness of individual hunts in search of historical absolution.

"Everything he says can be spun the other way. That is not to say that that's right, but it can. We need a ruling of an impartial person, if such a creature can be found," said one lawyer.

The former Progressive Democrat leader insists again that he never saw Col Michael Hefferon's witness statement, much less had anything to do with its editing. Following the RTE Prime Time programme that provoked all this, he insisted that Col Hefferon's three statements had been merely synopsised. Then, he argued that the cuts were useless because they were little more than hearsay.

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Later, he changed again. The deletions were now irrelevant because the defendants had already been charged by the time detectives got around to talking to the Head of Military Intelligence.

Yesterday, he repeated this: "[His] statement was made three days after the defendants were arrested and four days after warrants were applied for by the gardai on the matter and that should be remembered."

But it should also be remembered, and Mr O'Malley has never acknowledged this, that the cuts could equally have helped the defence of those charged, including Charles J. Haughey.

Mr O'Malley insists once again that the archives file holds papers that were not there on the night he claimed privilege on it three weeks after he became Minister for Justice. True, much has been added. However, the Hefferon statement must have been there, given that the file was active by then.

Yesterday, Mr O'Malley left the vague implication in the air that it might not have been.

The privilege claim should be read, he argues reasonably, against the standards of the time: "There was a culture of secrecy at that time which was quite different to the atmosphere we operate today. These claims of privilege were sent to me from the Attorney General's office with a request to sign. In these circumstances I would have needed a very compelling reason not to sign them."

This declaration is interesting, since nothing has been found by independent figures to show that it was the then Attorney General, Mr Colm Condon, who had first proposed privilege.

In the television documentary Des O'Malley - A Public Life, Mr O'Malley implied that the hugely powerful Mr Peter Berry was the real authority in Justice - i.e. that he may have made the cuts. Yesterday, he exonerated Mr Berry entirely and pushed responsibility away from Justice. The book of evidence was written by two middle-ranking members of the State's legal team.

The evidence indicates that they "decided what went into, or came out of, the book of evidence. There is no evidence available that anybody else was involved."

This is hardly credible. The Arms Trial was the biggest State case ever taken. Would two relatively low-ranking figures have been left with sole control of the case? Indeed, Peter Berry's close interest is shown by the fact that he had sight of the Hefferon statement within days of its being taken.

Furthermore, Mr O'Malley contends that the State did not always do itself favours: "It is clear that other changes were made and material omitted which disadvantaged the prosecution," he wrote.

He offers numerous examples from other heavily culled witness statements that often back up his point. Fair enough, perhaps. Even here, however, the argument can be turned.

"The cuts in Jim Gibbons's statement could back that up. Just as easily, though, they could have been done to protect Gibbons," said one source.

Thirty years on, most who still care know where they stand on the Arms Trial. Convincing people to change their minds will be difficult. "History will get it right when we are all dead and gone," comments Des O'Malley. He may have to wait that long.