AN IRISHMAN'S DIARY

AND Now a story from Ireland of "openness, transparency and accountability. In April 1993, Nicky Kelly asked me to write his biography. Over the previous years I had written quite a bit about his case and for some time I had been convinced that he was innocent of involvement in the so called Sallins mail train robbery, which occurred at Kearneystown, Celbridge, Co Kildare, on March 31st, 1976.

We went to one of the country's leading publishers. They were enthusiastic and asked that I write the book as autobiography. When Justice Sleeps was completed by late October 1993, and the publishers were happy with it. Enter the lawyers, followed by a delay.

In January 1994 they told us the book "could not be published in its present form". The problem lay with Kelly's account of his interrogation by gardai. We were advised to go back to the transcript of the trial and to give "a fair and accurate account of the proceedings" from there. And so the summer of 1994 disappeared beneath a mound of court reports. The changes were made and the book was returned to the publishers.

In January 1995 the lawyers told us "No matter what is done with this book, it represents a risk to the client (the publisher)." The publisher withdrew.

It was decided to hand the book over to an agent. To date he has been in contact with seven more publishers, unsuccessfully. Some were very enthusiastic. Then their lawyers became involved, too. All have since crept away like sheep in the night. One of the country's more courageous publishers did so even following a positive opinion from a leading senior counsel. "It may be that I'm getting old and chicken," he wrote in a letter.

Miscarriage of Justice

The hunt goes on and with every refusal, dear reader, the resolve deepens to have this book published. This is not just stubbornness, but is a determination that the worst miscarriage of justice in recent Irish history will not be compounded.

Here is a man who according to the President Robinson's pardon of April 1992, shall henceforth stand released and discharged from all penalties, forfeitures and disqualifications incident to, or consequent on, the said conviction (previously specified in the pardon), as if he had not been charged or convicted" (my italics).

Here is a man who, to date, has received more than £1 million in compensation from the State £750,000 in personal compensation and the remainder in legal fees, with more to be paid yet he still cannot tell his story. It is outrageous.

If it happened to the Birmingham Six, the Guildford Four or Annie Maguire, imagine the reductions there would be here about British justice. Meanwhile, our own disgraces are blithely dismissed into the ever present murk of rumour and innuendo.

Mail Train Robbery

In the early hours of March 31st, 1976, a group of armed men held up and robbed the Cork to Dublin mail train at Kearneystown. They got away with an estimated £221,000. Four years later, the IRA admitted responsibility. Twice

On April 5th, 1976, 17 people (unofficially, the figure is put at about 40) were arrested in connection with the robbery. Six people were charged, four tried three convicted, two released on appeal, leaving Nicky Kelly. During the 16 years which spanned the period between the robbery and his pardon in 1992 he spent 2 1/2 years awaiting trial, 18 months on the run, four years in jail, 38 days on hunger strike, and, to quote the then Chief Justice, Tom O'Higgins, he "exhausted the appellate jurisdiction of this State". In 1984, he was released from prison on "humanitarian grounds" by the then Labour/ Fine Gael Coalition.

Prolonged Interrogation

There was no forensic or circumstantial evidence linking Kelly to the robbery. There was only the confession he signed in the Bridewell Garda Station, Dublin, at 5.15 on the morning of Wednesday, April 7th, 1976. By then he had been in custody for 43 hours since 10 a.m. on Monday, April 5th and had laced interrogation by gardai for a total of 27 hours. He claims that, altogether, he slept six hours during all of this.

At his trial, Kelly alleged that he had been severely and continuously beaten during his interrogation. According toe medical evidence, his injuries were "consistent with these allegations". All the allegations were strenuously denied by the gardai, many of whom were present in court.

Of the St witnesses for the prosecution, three were doctors from Mountjoy and Portlaoise prisons, who related their findings on examining Nicky Kelly when he was admitted. Another witness was an attendant to one of the doctors. The remaining 47 prosecution witnesses were gardai.

Mr Justice Hamilton (now Chief Justice) decided that Nicky Kelly's injuries had been "self inflicted or inflicted by collaboration with persons other than members of the Garda Siochana", and the confession was allowed as evidence. That decision still stands in law, despite the Presidential pardon.

The confession was investigated, separately, by two British scientists for the Wednesday Report RTE television programme in October, 1991. Both concluded that it "could not be accepted as the utterance of Mr Kelly". Yet this discredited document retains a standing in Irish law, a consequence of which is that Nicky Kelly still cannot tell his story to the Irish people.