Tuesday, 22 October 1991
Dáil Éireann Debate
An Ceann Comhairle: Deputy Pat McCartan has given me notice of his intention to raise the matter of the consideration to be given to granting a pardon to Nicky Kelly in view of the new evidence that has emerged on a recent  RTE programme. Deputy McCartan knows the procedure very well.
Mr. McCartan: I thank you for the opportunity to raise this important and personal issue with regard to the case of Nicky Kelly. I have known Nicky Kelly for a long time. I was his solicitor at the time he was before the Special Criminal Court charged with the offences that led to his conviction. I did not share his political opinions at the time of this trial and I do not share them now. However, I have always doubted the validity of the conviction against him and as the years have passed I, and many other people representing a wide range of political and legal opinions, have become more convinced than ever that he had been the victim of a serious miscarriage of justice.
The recent “Today Tonight” programme has focused attention on the Kelly case once again. Most of the material in the programme was familiar to those of us who have followed the case over the years, but it did have the value of bringing most of the important material together and it provided further new forensic evidence which cast further doubt on the confessions which Mr. Kelly is supposed to have made, and I believe that the case for action on the part of the Government is now unanswerable.
I have had a long personal and professional involvement with Mr. Kelly in this case. The developments in the case have caused a lot of surprise, dismay and anger on my part. I was shocked when, perhaps as the first outsider, I met him in the cells of the Bridewell Garda Station on the morning after his being charged. He was visibly shaken and clearly showing injury. I was surprised on reading the book of evidence which was served against him and which showed only one substantial piece of evidence, namely his statement. I was curious when his original co-accused, John Fitzpatrick, was never tried, as the same case existed against him and he admitted, in his alleged statement, being in Kelly's company at the time and  at the scene of the crime. I was shattered by the final ruling of the Special Criminal Court which as a fact, by way of implication only, found that Kelly had beaten himself or had had his injuries inflicted by his co-accused. My dismay was compounded by the failure of the Court of Appeal and of the Supreme Court to vindicate his innocence, though the same Court of Criminal Appeal had in the meantime found the two co-convicted people who were detained and questioned in similar circumstances as having been subjected to oppressive questioning, and ruled that their convictions had been obtained in unacceptable circumstances. I was relieved when, with another, I talked Kelly from the brink of death in the Curragh military hospital when on hunger strike and I was heartened when he was exhorted to pursue legal remedies before the courts, though shattered yet again when a stopper was used against him on the basis of the Denning ruling in the now discredited “appalling vista” judgment. The “Today Tonight” programme offers us a new opportunity to end this blight on an otherwise reasonable history of our legal and justice systems. The only real remedy available now which should be extended to this man is that the Government should recommend to the President the granting of a pardon along the lines recommended by Judge Martin.
Mr. Gregory: I thank Deputy McCartan for allowing me a few moments of his time. Like Deputy McCartan I have known Nicky Kelly for a long time and like Deputy McCartan I am asking that a pardon be now granted to Mr. Kelly.
I was involved in the Release Nicky Kelly Committee and campaigned vigorously while he was in Portlaoise Prison. Indeed, I raised his case in this House at length when he was on hunger strike in the Curragh Military Hospital. At that time very few Deputies were prepared to publicly support his case. Today all that has changed; Deputies from all parties  right across this House are prepared to publicly support the view that a serious injustice was done to Nicky Kelly and that he should now be pardoned.
The parallels with the Birmingham Six and the Guildford Four Cases are clear. I believe the Minister should have the moral courage to accept that a serious miscarriage of justice is involved in this case. It is my view that a full pardon is now the only satisfactory way to resolve this case once and for all.
Mr. N. Treacy: As the Minister for Justice made clear in the House today in response to a number of questions on this matter, the position with regard to RTE's “Wednesday Report” programme of 9 October regarding the conviction of Mr. Nicky Kelly is that the advice of the Attorney General has been sought on the various issues raised by that programme. The Minister for Justice also made it clear today that in those circumstances it would not be appropriate for him to comment further on the case in question. I do not propose to depart from the position now other than to say that the Minister for Justice will be guided by the advice of the Attorney General in regard to whatever steps are appropriate or are required to be taken as a result of the matters raised by the programme.
As mention has been made of the Martin Committee it might be helpful to the House if I outlined the committee's recommendations. The committee's terms of reference were, in part, to examine whether there is a need for a procedure whereby persons who have exhausted the normal appeals procedures can have their cases further reviewed and, if so, to make recommendations as to what procedure should be provided and in what circumstances it should apply.
In brief, the committee recommended the establishment of an independent body with statutory powers of inquiry to examine cases where substantial doubt as  to the propriety of a conviction has arisen but where the normal appeals procedure has been exhausted. The committee considered that any such case would first be examined by the Attorney General who would decide whether the case warranted referral to the inquiry body and who would advise the Government accordingly.
The function of the inquiry body on the referral of a case would be to inquire into all the available facts and circumstances surrounding the conviction. It would then express its opinion as to whether doubt existed as to the propriety of a conviction. Following that, it would then be a matter for the Government to decide whether action should be taken and what action was appropriate in any particular case.
It will be clear that these recommendations raise important issues concerning the respective functions under the Constitution of the Executive and the Judiciary and they are currently under examination. Any proposals arising from this examination will be announced in the normal way in due course. The concern of the Minister for Justice is to ensure that the scheme that is put in place to deal with issues of this kind is the right one.
I would remind Deputies that Mr. Kelly's civil action is still before the courts. The matter of alleged ill-treatment to which he has referredis sub-judice and in these circumstances it would not be appropriate for me to make any comment.
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