A HISTORY of the fall of the last government made up the greater part of yesterday's court proceedings.
Lord Gareth Williams QC detailed briefly Mr Reynolds's rise to high political office and went on to discuss events in Dublin during "those dying months of 1994".
"Political life in the Republic of Ireland is not the same as in England or Wales", he continued "as very often they have coalition governments." He explained that such governments involve deals. "If a vacancy on the judicial bench arises, the Taoiseach fills that vacancy, subject to the President, Mrs Robinson, approving." Such a vacancy arose in September 1994, for the post of Chief Justice.
He told the jury the position was filled by Mr Justice Liam Hamilton and that this created a vacancy in his former post as President of the High Court. Mr Reynolds decided to appoint the Attorney General, Mr Harry Whelehan, to the post, creating a further vacancy. Mr Eoghan Fitzsimons was appointed Attorney General on November 10th, 1994. Mr Whelehan resigned as President of the High Court on November 17th, he said, "after just six days in the job".
Mr Reynolds had wanted Mr Whelehan to become President of the High Court but the Tanaiste, Mr Spring, was not so keen, he said. "He thought, perhaps, he was too conservative.
Lord Williams then referred to a UTV programme "in 1994" on Father Brendan Smyth, explaining its content and allegations about the priest "sexually abusing small children over a number of years". He said: "There were complaints that Mr Whelehan had not been fast enough in extraditing Father Smyth to Northern Ireland." Mr Reynolds "became very concerned".
The former Taoiseach asked Mr Whelehan to explain the delay in dealing with Smyth's extradition. On November 9th, 1994, Mr Whelehan sent Mr Reynolds a written report on the matter, in which he said he had not been made aware of the extradition request "until recent weeks".
Mr Whelehan continued that there had been no departure from the manner in which extradition cases had been dealt with at his office. No file had been "buried" or "hidden" or "put away". He referred to "the consequences of haste" in the McGlinchey and Trimbole extradition cases, both of which failed, and disputed any comparison with the speed with which the law was processed in the X case.
Lord Williams, who also briefly explained what the X case referred to, interpreted Mr Whelehan's report for the jury as indicating that the Attorney General and his legal assistant, Mr Matt Russell, "could not agree on what the law really was" in this context.
Mr Reynolds gave a copy of the report to Mr Spring, who wrote back on November 10th saying he had discussed it with colleagues, that it was "totally unacceptable", and that he could not support the appointment of Mr Whelehan as President of the High Court. Mr Spring's reply was handwritten and Lord Williams drew the jury's attention to "just a little quirk" in it. He found it unusual Mr Spring should note the time of the letter 7.30 p.m.
A postman had been murdered in Newry that day, Lord Williams recalled, and, because of his concern for peace in Northern Ireland, Mr Reynolds deferred further consideration of the Smyth extradition issue until the following day, Friday, November 11th.
There was a Cabinet meeting on Friday, November 11th, and it was attended by Mr Whelehan, who was questioned at length.
"Maybe there was a feeling he had acted in good faith", said Lord Williams, "but the explanation was not good enough." He explained that Fianna Fail proceeded to appoint Mr Whelehan to the Presidency of the High Court, and Mr Fitzsimons as Attorney General.
"Mr Spring and the rest of Labour walked out," he continued. Mr Reynolds was going to make Mr Whelehan's report public, and would address the Dail on Tuesday, November 15th.
The Minister for Justice, Mrs Maire Geoghegan Quinn, instructed the new Attorney General to review the Smyth case. He "had been pitchforked in at fairly short notice", said Lord Williams. Mr Fitzsimons carried out a review and found another case, the Duggan case, "which at one time was thought to be similar to the Smyth case", said Lord Williams.
Mr Whelehan was asked to delay his formal swearing in as President of the High Court but refused. He was sworn in on Tuesday, November 15th. That afternoon the Dail was to sit at 2.30 p.m. In preparation, Mr Reynolds was having a speech drafted. There were two drafts. He sent both to the new Attorney General for comment, as in "have I got it right?".
"Eoghan Fitzsimons never said or wrote a word (in reply)," Lord Williams told the jury, and advised them, "remember that if you would".
Meanwhile, Mr Fitzsimons had prepared a memo about the Duggan case, saying Mr Matt Russell's advice to Mr Whelehan on October 25th was "incorrect". Lord Williams said this was "a tale of different people saying different things to Mr Reynolds at different times. Bearing in mind that he is not a lawyer, one of the things you might conclude from that is that you keep away from lawyers.
By the morning of Tuesday, November 15th, 1994, the Attorney General's memo still had not been received by Mr Reynolds, "and the nonsense does not stop there. What emerged was that the memo from Mr Fitzsimons was not given to him, and that was the key to this whole unhappy saga", Lord Williams said. Later that afternoon Mr Reynolds gave his speech to the Dail. The debate went on for hours. At about 9 p.m. Mr Reynolds went back to his "premises" after having a bite to eat, "and he was shown the document he had never seen before".
Referring to Mr Fitzsimons's "production - I cannot call it anything else", he said it was "almost unbelievable" it had not been given to Mr Reynolds until after the debate.
Mr Reynolds was "afraid of trouble in the Coalition, and Mr Whelehan would not step down". He was "getting somewhat exasperated". He called in Mr Fitzsimons at 1.30 a.m. on November 16th and asked him to assist with draft passages for his speech to the Dail later that day, to correct what was wrongly said on November 15th. Mr Fitzsimons, who was with him until 4 a.m., had advised that if Mr Whelehan still held office as Attorney General, he would have no choice but to resign.
Mr Spring wanted three sentences inserted in the speech also, as a precondition for staying in government. They would indicate that Mr Reynolds accepted that the Tanaiste's reservations about the appointment of Mr Whelehan were now acceptable to him, and that he regretted Mr Whelehan's appointment. Mr Reynolds agreed.
Lord Williams again drew attention to the time on Mr Spring's letter - 10.22 a.m., November 16th. The Dail was to sit at 10.30 a.m. It was adjourned. Sometime after 11 a.m., Mr Spring, Mr Ruairi Quinn, Mr Brendan Howlin, and Mr Mervyn Taylor went to see Mr Reynolds.
Mr Spring asked him when he was first informed about the Duggan case. He said it was on Monday but he had received no details.
He attempted to show Mr Fitzsimons's letter to Mr Spring but the Tanaiste refused to take it, saying "it's all too late". The Coalition fell apart. On November 17th Mr Whelehan resigned, as did Mr Reynolds.
