The failure to prosecute senior IRA figures after “seriously flagrant” offences in Northern Ireland could lead to retaliatory bombs in Dublin or in Border towns, Fianna Fáil’s minister for justice Gerry Collins warned in 1980.
The warning came after director for public prosecutions Eamonn Barnes had ruled against prosecuting former IRA, and later Irish National Liberation Army, member, Dessie O’Hare after a gun battle that left him injured.
Under the Criminal Law (Jurisdiction) Act 1976, the Irish authorities were able to prosecute someone in the Republic for an offence that had been committed in Northern Ireland.
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The case arose after a British army foot patrol came under fire in Keady, Co Armagh, on June 9th, 1979, before O’Hare and two others, Eugene MacNamee and Peadar McIlvenna hijacked a lorry to escape.
Though fleeing to the Border in the lorry, the three paramilitaries opened fire on an off-duty prison officer outside his home, but he returned fire, fatally wounding McIlvenna.
A short time later, another vehicle dropped O’Hare and McNamee, who had both suffered gunshot wounds as well as the body of McIlvenna, off at Monaghan Hospital.
Quickly arrested, a file on both men was sent to the DPP in August 1979 with a general belief among senior gardaí and RUC officers that they would be charged under the 1976 legislation.
However, the minister for justice Mr Collins learned on March 28th, 1980, from attorney general Anthony Hederman that a decision had been taken not to prosecute either man.
Collins said he was obliged to accept DPP and AG decisions, but said it was important that “clear and speedy decisions should be communicated with explanation of the legal reasons underlying the decisions”.
Frequently at odds over Border security, British prime minister Margaret Thatcher was infuriated that the Irish were not using the Criminal Law (Jurisdiction) Act 1976 for the very cases it was designed to tackle.
Unionists, including the leader of the Official Unionists, Jim Molyneaux, and loyalists were pressing for more Border road closures following a series of killings in Fermanagh, Mr Collins said.
Highlighting the need better to explain why some prosecutions were not taken, Mr Collins feared “retaliatory” action from those who accused Dublin of “a lack of willingness” to deal with “seriously flagrant breaches of the law”.
However, the State Papers help to explain why the prosecution was not taken, even though both the attorney general and the DPP initially believed the evidence would support a charge of attempted murder.
Mr Hederman explained to the minister for justice that a study of photographs and a map of the area around the prison officer’s home had “altered the entire complexion of the case”, while there were questions over some of the statements gathered.
Following that, it was clear that the proposed charges of attempted murder and intent to endanger life against O’Hare and McNamee would be “virtually unstateable”, Mr Hederman told the minister.