Claims Of Privilege:
I have read as much as I can of the limited amount of documents that are available relating to the claim of privilege signed by me which is portrayed in certain quarters as somehow sinister. I am advised that the signing of public interest immunity certificates or claims of privilege in the standard form such as this was quite common at the time. The claims of privilege specifically made provision for the judge to see the documents concerned. It is necessary to remind ourselves that where official documents and information were concerned there was a culture of secrecy at that time which was quite different to the atmosphere of freedom of information in which we operate today.
It is obvious that from a very early stage the prosecution envisaged public interest immunity certificates being signed. The first opinion advising on this was a lengthy one from Mr Aidan Browne, BL, of the prosecution team, dated 14th July, 1970. At that stage he drafted some claims of privilege. It appears there were discussions and correspondence about the question over a period and various re-drafts and new drafts were submitted. The drafting appears to have been done by Mr Browne and by Mr Declan Quigley, BL, who was the senior legal assistant in the Attorney General's office, which in practice meant that he was the Secretary of the Attorney General's Department and the senior permanent lawyer there. These claims of privilege were sent to me from the Attorney General's office with a request to sign them. In these circumstances I would have needed a very compelling reason not to sign them.
Obviously no such compelling reason occurred to me.
One of the claims of privilege or public interest immunity certificates related to what was then described as File S.7/70. File S.7/70 is now used as the general file or repository for all documents relating to the Arms Trial and arms crisis in 1970. It clearly was not so at the time but there was no schedule or list of contents of what was in the file at the time I signed the certificate and obviously I cannot recall exactly what was there. What is certain is that the large volume of documents that are now in S.7/70 were not there then.
For example the file now includes the book of evidence itself. How could I possibly claim privilege over that when it was served on all the defendants, and in the possession of the prosecution, gardai, judge and the press ? The file also now includes the 12 exhibits at the trial. How I could claim privilege over them when they were handed in as evidence in Court? The file also now includes the claims of privilege and the various opinions and drafts of the claims of privilege. How could I claim privilege over my own claim of privilege which was in fact a document to be produced publicly? What need was there to claim privilege under this heading when those latter documents were in any event covered by professional privilege as legal advice? Neither I, nor anyone else for that matter, can at this juncture say for certain what was in File S7/70 in 1970.
Prime time:
The thrust of the Prime Time programme was that changes were made to Col Hefferon's statement for the purpose of "doctoring" his statement in a manner favourable to the prosecution. However, when one compares the original statements of other witnesses with those actually contained in the Book of Evidence, it is clear that other changes were made and material omitted which disadvantaged the prosecution. In other words, so far from the sinister complexion which Prime Time sought to place on these changes, it seems obvious that the extensive changes which were made to the witness statements were done principally for the purposes of complying with the rules of evidence. Thus, hearsay, opinion evidence, evidence which is irrelevant to the issues and evidence which is more prejudicial than probative in value will, generally speaking, be inadmissible in a criminal trial. In addition, in some instances, changes were made to improve the clarity of the language.
Any number of examples could be cited for this purpose, but perhaps the following will suffice.
Mr Gibbons made three statements which were signed and witnessed: 18th May 1970, 22nd May 1970, 8th June 1970. (The latter two statements were in question-and-answer form). He also made an additional statement in an accompanying letter to Chief Superintendent Fleming on 28th May 1970. The statement of Mr Gibbons which was actually contained in the Book of Evidence appears to be based on these statements and letter, but with very significant changes and omissions.
Before considering these changes, it is also worth pointing out that one exchange as recorded in The Irish Times, during the course of the Second Arms Trial, demonstrates that the trial judge at least recognised that the statements in the Book of Evidence had been edited from the original version. During an exchange between Mr Gibbons and Mr N McCarthy SC (Counsel for Mr Haughey) regarding a particular telephone call and whether Mr Gibbons' statement in the Book of Evidence was accurate on a particular point of detail, counsel put it to Mr Gibbons: "Q. This is your statement. Did you not read it before it was signed? A. It is not literally my statement. I venture to say . .
Q. You venture to say what? A. That I can construct sentences better than that.
Mr Justice Henchy: You must not put it to the witness as his statement.
It is a summary." (emphasis supplied)
The following extracts from the original version of Mr Gibbons' statements merely give a flavour of the types of changes which were actually made.
In the first page of Mr Gibbons' statement in the Book of Evidence the following appears: "In the carrying out of my functions and duties as Minister for Defence, I received certain information concerning Captain James Kelly who was serving in the Intelligence Section of the Army. I had certain suspicions about Captain Kelly's activities from Colonel Hefferon. During the month of March and up to 23rd April 1970, at the request of Mr Neil Blaney who was then Minister for Agriculture and Fisheries and is another of the accused, I met Captain Kelly twice or three times, before April 23rd, probably twice. Captain Kelly and I spoke on these occasions about his proposed resignation from the Army. He raised the question of his resignation and I was keen to facilitate him, but I didn't want to leave him with a grievance." Compare this with what Mr Gibbons said in his first statement to Chief Superintendent Malone on 18th May 1970: "I thought it better that (Captain Kelly) leave the Army without any feeling of being got rid of, since he was party to a great deal of secret information. I also suspected him strongly. I also suspected Charles Haughey and Neil Blaney. These suspicions arose from information supplied to me by Colonel Hefferon, though this information was undefined." The underlined words do not appear in the Book of Evidence. The statement about Captain Kelly - "I also suspected him strongly" - has been changed to the blander "I had certain suspicions about Captain Kelly's activities from Colonel Hefferon." The Minister was asked by Chief Superintendent Fleming on May 22, 1970: "Question 2: You said in your statement of the 18th May that you suspected (Captain) Kelly strongly. Can you state what you suspected him of and what grounds you had for these suspicions? Answer: I suspected Kelly of over-involvement with groups in the ghettos in the sixcounties. Col Hefferon told me in a very oblique way that he himself had anxieties of this kind. Col Hefferon said that those groups were not identified with any form of the IRA.
Question 3: You said in the same statement that you also suspected Charles Haughey and Neil Blaney. Can you state what you suspected them of, and on what grounds? Answer: Mr Haughey's and Mr Blaney's names had been cropping up in reports made to me by Col Hefferon since the previous August. These reports were mainly verbal." These answers were not included in Mr Gibbons' statement in the Book of Evidence.
At the conclusion of Mr Gibbons' statement of May 18, 1970 he said: "I knew from the Minister for Justice that the Department had Capt Kelly under surveillance for a reasonable time. He was also worried about `our colleagues' and he mentioned his intention of having a chat with the Taoiseach. This would be some time in early April. Army Intelligence were very dissatisfied with Captain Kelly's performance and failure to report over long periods." Neither this passage, nor the answers to supplementary questions posed by Chief Supt Fleming on May 22nd, 1970 (Qs. 8 and 9) about this passage feature in the Book of Evidence.
Examples of other deletions: Mr Michael Donnelly was a senior official in the Department of Justice who was alerted on April 17, 1970 to the fact that a consignment of arms and ammunition was due in from Vienna. His actual statement in the Book of Evidence was very concise: "On the 17th day of April 1970 I received a telephone call from Mr Niall O'Brien, Assistant Secretary, Department of Transport and Power. At that time the Secretary of the Department of Justice was in conference with the Minister for Justice. As a result of what Mr O'Brien told me I telephoned Chief Superintendent Malone at Garda Headquarters and informed him of what Mr O'Brien had told me.
Shortly afterwards, the Secretary of the Department of Justice became available and I also told him what Mr O'Brien told me." However, this statement is based on a five page memorandum written by Mr Donnelly on April 20, 1970, almost all of which has been excluded from the Book of Evidence. It suffices for present purposes to compare the opening words of that memorandum with the Book of Evidence: "On the 17th inst, I received a telephone call from Mr Niall O'Brien, Asst Secretary, Transport and Power, about what he described as a rather strange approach that had been made to the Cargo Division of Aer Lingus. A man representing himself as Commandant Kelly of Army Secret Service had approached the Cargo Division to know if they could bring in a consignment of arms and ammunition from Vienna. The consignment would be a large one weighing six tons and would consist of Luger pistols (and ammunition) `which were required to arm the Garda Siochana who were engaged in guarding the banks'. The name of the Dublin import agent was given as Otto Sleuter, Capel Street. The Cargo Division estimated that a consignment of six tons would represent about 750 pistols and ammunition." The memorandum continues in similar vein. However, the underlined words were not contained in the Book of Evidence, although their presence could only have helped the prosecution case. One can only assume that this evidence was excluded because it was hearsay.