The failure of the Smithwick Tribunal to undertake a basic reconstruction of the murders of the two RUC officers it investigated meant it missed a vital opportunity to see how unlikely its own findings were, three former senior Garda officers have concluded in an evaluation.
They say the finding of Garda collusion in the killings damages relations between the Garda and PSNI and undermines the State’s ability to actively pursue substantial acts of collusion during the Troubles.
They believe the main finding, arrived at by a poorly run tribunal, is based on no evidence and impugns the good name of unidentified gardaí not represented at the tribunal who were offered no opportunity to defend their good names.
The former chief superintendents are John O'Brien, Michael Finnegan and Michael Staunton.
Chief Supt Harry Breen and Supt Bob Buchanan were shot dead by the Provisional IRA shortly after leaving a meeting at Dundalk Garda station in March 1989 at an ambush point in south Armagh.
Based on their experience of investigating the Provisional IRA (PIRA) and evidence given to the tribunal by the killers, the three former Garda officers believe the murder plan could not have been executed without significant risk had it started from scratch on the morning of the killings and been facilitated entirely on the basis of specific information supplied by a Garda member in Dundalk, as the tribunal found.
“Logistically this required 20-70 operatives, involving provision of weapons, scouting, communication between PIRA members, contingency planning, escape route [and] counter-forensics”, it said of the tribunal’s preferred scenario.
“The tribunal did not have a crime reconstruction undertaken to determine the logistical probabilities. This was a serious omission on their part.”
The men have concluded that the tribunal simply preferred to believe untested information claiming Garda collusion supplied in private by the PSNI and ignored the evidence of PIRA members involved in the murders, despite the latter having no reason to lie.
They suggest the tribunal made no finding of collusion against the three former Garda sergeant suspects – Leo Colton, Finbar Hickey and Owen Corrigan – for lack of evidence but then decided not to extend that standard to their colleagues in Dundalk on the day, instead making the "quantum leap" to find an unknown number among them guilty of collusion.
“We have searched for the logic and the reasoning behind this finding and obviously it should have two manifestations: legal and factual,” the men write in their analysis.
“In legal terms the assumption is that it is on the ‘balance of probabilities’. However, the balance of probabilities makes sense provided there are individual facts, which collectively allows one to make a global conclusion. There are no such individual facts.”
They point out too that there was no record of the tribunal investigating an allegation that RUC officers were passing information to the Provisional IRA.
The men have submitted their evaluation to the Minister for Justice Alan Shatter, and it is understood it will also be sent to Garda Commissioner Martin Callinan. They say they are hopeful of "inviting analysis from impartial observers" who they hope will consider whether they accept the tribunal's finding or the critique provided by them.
They “deeply regret” having to compile their evaluation, which they accept may cause further suffering to the dead men’s families. However, they had tried to compile it sensitively.
They are calling on the Government and Oireachtas to "reject the collusion finding as a matter of urgency and justice" and have pledged to participate in any review if requested.
They point out that they all held positions of authority in Dundalk District at various times and having followed the route travelled by Smithwick, and failed to come to the same conclusions: “We refute this finding on behalf of gardaí who carried out our orders that often placed them in harm’s way. We have served this State collectively for nearly 120 years and we have a strong sense of duty and a commitment to truth and justice.”
Background - 133 days of evidence, eight years in the making, at a cost of over €10m
The Smithwick Tribunal was set up by the government in 2005 in response to allegations of collusion between members of the Garda based in Dundalk and the Provisional IRA in the 1989 killing of two RUC officers.
Chief Supt Harry Breen and Supt Bob Buchanan were shot dead in an IRA ambush in south Armagh in 1989, just minutes after they left a meeting in Dundalk Garda station.
They were the most senior of the 303 RUC and RUC Reserve officers killed during the Troubles.
The tribunal was unique in that its remit was to inquire into killings which happened in another jurisdiction.
The tribunal sat for the first time on March 3rd, 2006, after which began a period of private investigation.
Tribunal chairman
Judge Peter Smithwick defined collusion "in the widest sense of the word".
While he said it “generally means the commission of an act, I am of the view that it should also be considered in terms of an omission or failure to act . . . ”
In June 2011 the tribunal began a series of public hearings to test its evidence. Three former gardaí
were granted legal representation at the tribunal. They
were former sergeants Leo Colton and Finbarr Hickey, and former detective
sergeant Owen Corrigan.
The public sittings covered 133 days of evidence, spread over more than a year. Witnesses included British agents, the PSNI, the Garda, journalists, and politicians from both sides of the
Border, as well as former members of the IRA, and the RUC.
The final report of the tribunal was presented to the clerk of the Dáil on December 3rd, 2013.
Judge Smithwick said he was "satisfied there was collusion in the murders" and that "the evidence points to the fact that there was someone within the Garda station assisting the
IRA".
The report was also critical of what he deemed a collegiate sense of loyalty among gardaí, saying two earlier Garda investigations into the killings were “inadequate”.
The tribunal cost in excess of €10 million.
TIM O'BRIEN
