Newly discovered documents have put paid to the theory that a key prosecution witness statement in the 1970 Arms Trial was "doctored" before being seen by the prosecution legal team, writes Mark Brennock, Political Correspondent
The additional documentation uncovered recently in the Attorney General's office still leaves many questions unanswered.
But it puts paid to one element of the conspiracy theory surrounding the 1970 Arms Trial - that a key prosecution witness statement was "doctored" before being seen by the prosecution legal team.
This allegation first emerged in an RTÉ Prime Time documentary in 2000. The programme revealed, on the basis of documents released to the National Archives under the 30-year rule, that the Garda statement of the former director of military intelligence, Col Michael Hefferon, was significantly changed before the Arms Trial began.
On May 30th, 1970, Col Hefferon gave a statement to gardaí concerning his knowledge of the events that ultimately led to the Arms Trial.
It detailed the activities of one of his intelligence officers, Capt James Kelly, in dealing with Northern "defence committees".
These committees wanted Capt Kelly to assist them in the purchase of arms.
Col Hefferon's statement indicated that two ministers who became Arms Trial defendants, Mr Charles Haughey and Mr Niall Blaney, were fully aware of what Capt Kelly was doing.
However, most sensationally, Col Hefferon's statement said: "It is my opinion that Mr \ Gibbons [then minister of defence\] knew that Capt Kelly was involved in assisting the defence committees in the North to procure arms."
It also contained a number of other references clearly indicating that Mr Gibbons was informed of events at various stages of the plan to import arms.
If true, this could have fatally undermined the prosecution case. Mr Gibbons was being portrayed by the prosecution as a minister for defence who was being secretly bypassed by two maverick ministers - Mr Haughey and Mr Blaney.
They were said to be dealing directly and without authorisation with Capt Kelly with a view to importing weapons.
The idea contained in Col Hefferon's statement - that Mr Gibbons was aware all along of the plot - would have suggested a level of government involvement that was strongly denied at the time, and denied to this day by the then minister for justice, Mr Desmond O'Malley.
However, Col Hefferon's statement was edited before inclusion in the prosecution papers for the first trial (there were two, as the first one was aborted).
Some of the edits could reasonably be said to have been made to excise hearsay evidence, as would be normal. However, it also appeared that someone had gone through the statement and carefully excluded every reference to Mr Gibbons's having knowledge of the affair.
Thus, when Col Hefferon finally gave his evidence orally in the first trial, it was not in accord with the written statement furnished for the trial. While his oral evidence was consistent with his original statement - and implicated Mr Gibbons - he became portrayed as an unreliable witness as none of this was in his edited statement.
As a result, he was dropped from the list of prosecution witnesses for the second trial a few months later.
This decision was said to have been made because of Col Hefferon's alleged unreliability. However, it is also clear that what he had to say was damaging to the prosecution case.
Ultimately, in an unusual move, the judge, Mr Seamus Henchy, called him, whereupon he repeated the evidence that Mr Gibbons had known of Capt Kelly's activities. This point was crucial to the ultimate acquittal of the defendants.
There was no progress in attempts to solve the mystery of Col Hefferon's evidence until the release of Department of Justice files to the National Archives two years ago under the 30-year rule. Col Hefferon's original statement was found in a Department of Justice file by Capt Kelly, who has asserted forcefully over three decades that he was severely wronged in the case.
Handwriting and date stamps on the Hefferon statement showed that it had been received by the secretary of the Department of Justice, the late Mr Peter Berry, on Sunday, May 31st, 1970 - the day after it was made. It was then stamped as having been seen by the then minister for justice, Mr O'Malley, the following day, Monday, June 1st.
Most interestingly of all, the version that showed up in the Department of Justice file contained notes and markings accepted to be in the late Mr Berry's handwriting.
Some of the markings were beside elements of the statement that implicated Mr Gibbons.
The conspiracy theory appeared less far-fetched at that point. A statement by Col Hefferon that could have torpedoed the prosecution case was delivered to Mr Berry on a Sunday, the day after it was made; Mr Berry had marked the dangerous bits which were subsequently excised.
The prosecution in the trial was puzzled by Col Hefferon's evidence - it appeared they may have been unaware of his original statement. It was staff in the office of the Attorney General, Mr Rory Brady, who uncovered the latest element of the story in recent weeks. As they searched in the basement of the Merrion Street office for documents to be released this year under the 30-year rule, they found more Arms Trial papers that had been misfiled with other Northern Ireland documentation.
The Minister for Justice, Mr McDowell, has done interested parties the courtesy of informing them about these papers this week before they read about them in the New Year papers.
Among the papers is another copy of the statement made by Col Hefferon on May 30th, 1970. This one contains deletions and alterations corresponding exactly to the changes made in the Book of Evidence presented to the trial (the Berry markings do not correspond exactly). These deletions and alterations are in the hand of the late Mr Declan Quigley, then the second most senior official in the Attorney General's office dealing with criminal matters.
Mr McDowell, in his letter sent this week to some of the parties still interested in the Arms Trial and its outcome, says this provides "conclusive support" for the main finding in a report he produced on the controversy in July 2001. This was to the effect that the alternations that were made "were not carried out by the Department of Justice or its Minister but, on the contrary, by the legal team which prepared the Book of Evidence".
But what this new documentation does not explain is why this was done.
Mr McDowell says that some of the deletions - "arguably the majority" - were made on grounds of hearsay and relevance. Others, however "might be more plausibly explained by an editorial policy to make Col Hefferon's statement appear more compatible with that of other prosecution witnesses and, in particular, the testimony of James Gibbons TD".
The question remains as to whether a member of the State's legal team adopted such an editorial policy on his own.
The existence of the statement marked by Mr Berry (and the majority of the final cuts coincide with the elements he noted) raises the question as to whether he was making these notes for his own purposes or for communication to others.
There is also the outstanding question as to why the then minister for justice, Mr O'Malley, signed an order on the second day of the second trial claiming privilege over the file which contained the document.
It may not have been specifically to keep the original Hefferon statement secret - it is known, for example, that Mr Berry was anxious to protect sources of information revealed in other documents contained in that file.
But this had the effect of ensuring the original statement was not produced during the second trial.
Mr O'Malley and others have said that the original witness statements would have been available for inspection in court anyway. But Col Hefferon was not to be called in that trial, so his statement may not have been included.
The trial judge, Mr Seamus Henchy, has said he has no recollection of having his attention drawn to the existence of such a document. Without knowing about it, he would not have asked to see it.
Some of these questions may be answered as more documents become available to the National Archives in the future.