The Globalist

Hefferon also said that: Captain Kelly was acting at all times as a serving army officer and in an official capacity. Captain Kelly was acting on orders from the Minister for Defence who was aware of his activities. Both Minister Gibbons and possibly Minister Blaney had promised arms to representatives of the Northern Defence committees. Any arms would remain at all times in a designated place and under the control of Captain Kelly and the army until a decision was made and orders given as to their disposal.

There were two trials. The first trial collapsed because of allegations of bias. The second trial would eventually collapse because of a number of flaws in the prosecution’s case, including contradictions in testimony given by Haughey and Gibbons. But that was not the end of it for Captain Kelly, nor for Sutherland. The government tasked the Public Accounts Committee of the Irish parliament to investigate the IR£100,000 spent by the cabinet sub-committee. According to Suzanne Kelly, a prominent tax lawyer and daughter of Captain Kelly, Justin Keating, then a Labour Party TD, privately told Kelly that the Public Accounts Committee had been told that its remit of looking into the money was a political fig leaf. Its real purpose was to rerun the trial, except this time it was to deliver a guilty verdict.

This time Sutherland represented Captain Kelly pro-bono. According to one former colleague, anything that Sutherland did, ‘he did with all the might of a front row forward’. The first real example of this was that Public Accounts Committee. The junior barrister cross-examined Gibbons, who was by then Minister for Agriculture, with an intensity and robustness that effectively derailed the case against Kelly.

When the second trial commenced Hefferon had been dropped from the prosecution case as a witness. His original statement remained in the book of evidence and the State justified not calling him on grounds of unreliability. He was eventually called as a ‘bench witness’ by Mr Justice Henchy during the second trial.

McKenna’s examination of Hefferon on 13 and 14 October 1970 was an attempt to salvage the State’s case during the second trial. However, it only served to highlight a number of critical issues:

The change of official policy evidenced by the directive of 6 February 1970 and as confirmation of this policy, the movement of rifles and ammunition to Dundalk on 2 April 1970 on Gibbons’ orders for possible distribution. The central role of Minister Gibbons in the whole affair, of his close advance knowledge of Captain Kelly’s activities, of the plan to store the weapons and of his knowledge of the precise location for storage (in a monastery), knowledge which gave him effective ‘control’ over the weapons. The unreliability of Gibbons’ own testimony during the trial.

At the conclusion of his evidence during the second trial, as he left the witness box, Hefferon was applauded by members of the public in the gallery.[2]

The night of Sutherland’s appearance before the Public Accounts Committee, Sutherland had dinner with his father in the United Services Club on Stephen’s Green. Billy Sutherland told his son that it was a fatal mistake to take on the establishment in that manner and it would surely undermine his career prospects in Ireland. In the event, it evidently didn’t.

*

The arms crisis has remained an open sore in Irish political life. Allegations of a state cover-up have persisted. Under the terms of the National Archives Act, papers relating to the 1970 trial were released into the public domain at the end of 2000. On 18 February 2001 newspaper reports alleged that an attempt had been made, by altering Hefferon’s witness statement, to suppress evidence that would have supported the defence case, and in particular what Jim Gibbons knew about the plan to import arms and ammunition. On 10 April 2001 a Prime Time programme broadcast by RTÉ examined the issue of Hefferon’s statement in much greater detail.

The issues raised in the press and on television were the subject of a debate in the Dáil on 11 April. In the course of the debate John O’Donoghue, the Minister for Justice, accepted that the programme’s contents gave cause for concern. Pledging to make enquiries and to report back on his findings as soon as he was in a position to do so, O’Donoghue asked attorney general Michael McDowell and the Garda commissioner to respond to specific aspects of the issues raised by the programme; their contributions were to form part of the final report.

The report, prepared by McDowell, considered the allegations of conspiracy and in doing so examined the preparation and editing of Hefferon’s statement and the preparation of the Book of Evidence (the case for the prosecution), by reference to practice and procedure at the time. It considered the procedure by reference to the law of hearsay, the relevance of the state and nature of Gibbons’ knowledge as to the guilt or innocence of the accused in the trial. The scope of the investigation also included a number of documents that were not released into the public domain, including Garda reports and intelligence files felt to contain material that, if made public, could possibly lead to an action for defamation or otherwise cause distress or danger to individuals. At the time the report was compiled several items were found to be missing, including the prosecution case file, the original Garda investigation file, and the transcripts and sound recordings of both trials.

The overall report concluded that, notwithstanding the limitations of the passage of time, the absence of key evidence and the fact that some of the key witnesses and actors were now deceased, it was reasonable to infer that while the possibility of an attempt to suppress evidence could never be definitively ruled out, the likelihood was remote.

Sutherland retained Dr Brian Jackson, the head of postgraduate studies at Carlow Institute of Technology, to look at the report. The following is an extract from Sutherland’s papers based on material provided by Jackson:

While there is no doubt that the statement made by Michael Hefferon to the Gardai was extensively edited before it was included in the Book of Evidence as served on the accused, this was usual practice and was done to eliminate hearsay and other irrelevant material and was consistent with the duty imposed by S 6 (1) (d) of the Criminal Procedure Act 1967, to provide the accused with ‘a statement of the evidence that is to be given by each of them (i.e. the witnesses)’. The Book of Evidence was prepared by three lawyers on the prosecution team. They were Aidan Browne BL, Edward Durnin of the CSSO and Declan Quigley of the AGO who appears to have undertaken the bulk of the work. He received clerical assistance from Garda John Gallagher – now John Gallagher SC (identified by Michael McDowell during the course of our discussion of 24 September). The Attorney General concluded in his report that there was no evidence of any Ministerial or any Department of Justice involvement in the process around the preparation of the Book of Evidence.

Furthermore, Michael McDowell concluded that:

There was no conspiracy or strategy on the part of the Department of Justice to deceive or otherwise influence those engaged in drafting the Book of Evidence as to the true nature of Michael Hefferon’s statement to the Gardai. Notwithstanding the edited form in which the statement appeared in the Book of Evidence, the Attorney General concluded that the original statement would have been available in the court if required under S 3 and S 4 Criminal Procedure Act 1865. Evidence from heavily annotated papers belonging to Michael Hefferon and now in military archives suggests that Capt. James Kelly had sight of and was aware of the contents of the original witness statement. Given the number of actors involved within Justice, the Gardai and the legal profession, any ‘conspiracy’ would have required wide and conscious participation and in view of the inherent risk this can be discounted (a) on the basis of the absence of compelling evidence and (b) the likelihood of a more coherent and probable explanation.

Although there were no formal guidelines for the preparation of books of evidence extant in 1970, the process can be re-imagined with the help of documents from the early 1980s. By this process the AG concluded that: There was an accepted ‘editorial’ approach employed in the preparation of books of evidence in order to eliminate hearsay and other irrelevant material. It was never practice to include witness statements in their entirety. The complete statement would have been available in the court as a matter of standard procedure. Rules and practice around disclosure of documentation at the time of the trial differed from current practice and there was no general duty to disclose, as a matter of course all witness statements to the defendants. However, there was a duty to call all material witnesses and to disclose all relevant evidence.

At this point the AG refers back to the charge before the court, a conspiracy to import arms into the State in contravention of S 17 of the Firearms Act 1925. Principally, he focused upon the terms of the specific exclusion under S 17 (8) of the Act which provides for the legitimate importation of arms and ammunition ‘under the authority of the Minister for Defence for the use of the Defence Forces’. This is a crucial distinction and Michael McDowell concluded that those preparing the Book of Evidence may have taken the view that the case turned on the intended use of the arms (not on the knowledge or authority of the Minister for Defence) and that any evidence as to the Minister’s state of mind (which accounts for a significant amount of the excised material from Hefferon’s original Garda statement) may have been justifiably excised as prima facie hearsay. While this may indicate a very narrow and specific view of the case it does not support the charge that evidence was tampered with in bad faith or that it was improperly suppressed.

The Attorney General concluded in his report that: Prosecution was already in train before a statement was taken from Col. Hefferon. While the original statement made to the Gardai may have contained material that was politically embarrassing for James Gibbons and for the Government, it did not (as was suggested by the programme and by a number of commentators) remove the basis for a return to trial of the defendants. Col. Hefferon’s evidence as given in court was consistent with his original statement and it did not provide grounds for a direction to acquit.[3]

In other words, there was no conspiracy.

*

After the trial, Sutherland went back to burnishing his credentials at the Four Courts as one of a clutch of young barristers who were destined for greater things. The Four Courts refers to the Supreme Court, High Court, Court of Appeals and the Dublin Circuit Court. Sutherland was involved in some of the highest-profile cases of that decade. In June 1970 Daniel Brolly, from Lifford, Co. Donegal, a 51-year-old foreman employed by the Board of Works, claimed damages against Patrick McGowan, forty-three, a Fianna Fáil senator, chairman of the county council, hotelier and potato merchant of Ballybofey, Co. Donegal, for alleged ‘criminal conversation’ with his wife, 34-year-old Anne Mary Maxwell, and for ‘enticing her away from his house and society’. (The offence of criminal conversation has now been abolished, but at the time it enabled a husband to claim damages from his wife’s adulterous partner.) Sutherland acted on behalf of Senator McGowan. The case generated acres of coverage across the national press as salacious details of the affair were disclosed during the trial.

An application was made by McGowan’s legal team to have the case heard ‘in camera’, but this was rejected by the judge. In his statement of claim Brolly asserted that he and his wife had been married since April 1953 and that she had lived with him and their five children until May 1969. Since that time at various dates she had been ‘debauched’, ‘enticed’ and ‘procured against her will’ to ‘depart and remain absent from his house and society’. For prolonged periods she had been ‘harboured and detained’ by McGowan at various places around Ireland, in Donegal, in Sligo and in Dublin. As a result, Brolly was deprived of the services of his wife, his inalienable family right had been violated, the constitution and authority of his family destroyed, and he had suffered great mental distress. McGowan’s defence was that Maxwell had left the marriage of her own free will.

The case was eventually settled and McGowan agreed to pay a sum of IR£3,900, although there was no admission of liability. Marie Fleming, one of Brolly and Maxwell’s five children, who suffered from multiple sclerosis, unsuccessfully brought a case against the state for the right to end her own life. She died peacefully in 2013, having written extensively about her father’s case against McGowan in her memoir.

Sutherland was also involved in one of the highest-profile cases of the early 1980s. The Stardust was a nightclub situated in the north Dublin suburb of Artane. Forty-eight young people lost their lives when fire destroyed the club on 14 February 1981, dozens more being left with life-changing injuries. A Tribunal of Inquiry into the tragedy was held under Mr Justice Ronan Keane, Sutherland representing the manager and leaseholder of the Stardust, Eamon Butterly. It was not a popular cause, and Butterly was the target of widespread public disapproval. The tribunal found that it was ‘probable arson’. It was one of the last cases Sutherland would defend. He was soon to become attorney general.

4

FINE GAEL

SUTHERLAND HAD DISPLAYED VERY FEW POLITICAL inclinations while at UCD. In a choice between rubbing shoulders with the country’s future leaders at the L&H Society and playing rugby, the latter won out every time. But a successful career at the Bar hinges on vaulting ambition as well as cultivating the right sort of political ties. Ireland was a two-and-a-half-party state in the 1960s. For thrusting young barristers looking to make an impression, it was generally a choice between Fianna Fáil and Fine Gael. The two parties dominated the Irish political landscape from the foundation of the state onwards. Fianna Fáil, for most of its existence, was a cultural movement more than an orthodox political party. It was nominally left of centre but, in reality, it attracted people from across the ideological spectrum. What united all of them was the party’s commitment to a united Ireland. Being sound on the ‘national question’ was a pre-condition for membership of the ‘Republican Party.’ Fine Gael was almost the mirror opposite. It was firmly centre right and had a natural antipathy to the sort of nationalism displayed by Fianna Fáil. Its membership tended to be big farmers and the middle classes.

Some young barristers opted for Labour, but their choice was motivated by ideology rather than ambition. Many people, including new entrants to the Bar, cleaved to one party or the other based on civil war considerations. Not so Sutherland. He came from a Fine Gael background, but not because it was the side his grandparents had taken during the foundation of the state.

Sutherland’s grandfather had been the treasurer for Dublin Corporation. When he died in 1921, the family were bereft. Sutherland’s grandmother went to W. T. Cosgrave, the Minister for Finance, and explained her family’s straitened circumstances. She was a qualified public health nurse and Cosgrave ensured that she was put on the public payroll. According to Sutherland, Cosgrave’s benevolence was one of the reasons why he was affiliated to Fine Gael. But then again, Fine Gael would probably have been a natural home for the Sutherlands. They were after all a prosperous south Dublin family.

Sutherland was also drawn to the party thanks to Declan Costello’s 1965 policy pamphlet, ‘Towards a Just Society’. Costello cited the grinding poverty and poor housing conditions in his Dublin North West constituency as one of the main reasons for writing the document. ‘Share the resources of economic recovery fairly and, when an ill wind blows, prioritise the protection of the weak and the vulnerable,’ was one of its main themes. In calling for much greater economic planning and more government intervention in the economy, it was an attempt to address the shortcomings of an increasingly sclerotic Irish state.

Garret FitzGerald also joined Fine Gael because of the pamphlet. FitzGerald, who had struck up a good rapport with Sutherland at UCD, was another Jesuit-educated middle-class boy from Dublin. His parents came from a mixed marriage: his mother, Mabel McConnell, was from Northern Ireland and had converted to Catholicism upon her marriage to Desmond FitzGerald, the Minister for External Affairs in the first Irish government.

A schism developed within Fine Gael around the late 1960s. A Dublin-centred liberal wing had formed around Costello, whereas a more rural, law and order wing remained loyal to party leader Liam Cosgrave. Sutherland and FitzGerald were firmly on the liberal wing, while future Taoiseach John Bruton was in the Cosgrave camp. According to party sources, Sutherland and Bruton, while very respectful of each other, never developed a close relationship. On the other hand, Sutherland’s relationship with FitzGerald, probably more than any other in his life, would have profound consequences. But then again, while he remained loyal, he was not unaware of FitzGerald’s otherworldliness.

‘All of us had an ambivalent relationship with Garret – he could drive you bananas,’ says Gemma Hussey, a former Fine Gael minister. ‘I mean I was a great friend and an admirer of Garret’s. He was a good, honest, clever internationalist, but he was very scattered. And he’d have his mind changed very easily.’ If she was going to meet FitzGerald about something, her husband Derry would tell her that it might be a good idea to find out who the last person FitzGerald had spoken to was, because that person would have changed his mind. ‘I think it probably drove Peter a bit mad.’

Sutherland decided to dip his toe into the bearpit of elected politics. Friends are divided as to whether by doing so he was merely laying down a marker to be used as leverage when Fine Gael got into government, or whether he was intent on pursuing a career in the Dáil. He ran for Fine Gael in Dublin North West in the 1973 general election. Comprising as it did the working-class areas of Ballymun and Cabra, this would have been far from his natural constituency. ‘I have often wondered why he did it,’ Gemma Hussey says. ‘But then you have to throw your mind back to the times.’ Sutherland, she believes, would have felt strongly that a Fianna Fáil government with Charles Haughey in its ranks would not be good for the country. ‘He did it out of a sense of duty. A lot of things that Peter did were out of a sense of duty, I think.’

Michael Sweetman had originally been selected to run for Fine Gael in Dublin North West. One of Ireland’s first committed Europhiles, Sweetman had spearheaded the 1972 referendum on Ireland’s entry into the European Economic Community, having helped Declan Costello put together ‘Towards a Just Society’. Tragically Sweetman was one of twelve Irish businessmen killed in an air crash on 18 June 1972. The group, who were among the most prominent industrialists in the country, were on their way to Brussels to set up a bureau to lobby on behalf of Irish businesses following accession to the EEC. The plane went down near Staines, west of London, shortly after taking off from Heathrow. All 118 people on board were killed.

Mary Robinson, then a Senator, and Garret FitzGerald were among those who paid tribute to Sweetman. In many ways he had foreshadowed Sutherland – he had advised Fine Gael on Europe and Northern Ireland – so it was perhaps fitting that Sutherland should take his place in the election.

Costello had been the TD in Dublin North West from 1951 until 1969 when he stood down, although he contested the 1973 election in the Dublin South West. He would serve as attorney general in the Fine Gael–Labour coalition between 1973 and 1977, and as a judge in the High Court between 1977 and his retirement in 1998. According to Peter Prendergast, head of elections for Fine Gael in the 1973 election, the rationale for running Sutherland in Dublin North West was that the seat had been held for eighteen years by Costello, who was also a barrister and came from a similar social background to Sutherland. However, friends say Sutherland was well aware that his personal circumstances jarred with his putative constituency and that is why he put Carraig an tSionnaigh, the Irish version of his address, in his campaign leaflets to disguise the fact that he lived in Foxrock.

Hugh Byrne was Sutherland’s running mate. A somewhat eccentric character with colourful and controversial views, when François Mitterrand, the former French president, was on a visit to Ireland, the Department of Foreign Affairs was staggered and dismayed in equal measure that he wanted to meet Byrne, who he had met at a EU council meeting years earlier and found to be a very agreeable companion. ‘He was normally kept well away from civilised company,’ says one Fine Gael source.

In 1973 Byrne was a Fine Gael councillor in the area, with well-established links in the community: he was a GP and a member of the local boxing club. Although the odds were heavily stacked against him, Sutherland took the election very seriously. ‘Anybody who runs thinks they are in with a chance,’ says Prendergast. The constituency may not have been Sutherland’s natural territory, yet he took to the campaign trail with the same vigour he displayed on the rugby pitch. The dashing young barrister with an abundance of charm soon began to make an impact on the doorstep. One of the peculiarities of Irish politics is that there can often be more rivalry between party colleagues running in the same constituency than between candidates from opposing parties. The electoral system is based on multi-seat constituencies with TDs elected through a system of proportional representation by a single transferable vote. The logic is that there is a much better chance of unseating an opposing candidate in a subsequent election, than unseating a party colleague.

This particular dynamic has given the normal cut and thrust of electioneering an added edge. But even by the standards of campaign subterfuge that have prevailed in Ireland, what happened in Dublin North West in 1973 has attained a unique place in the pantheon of strokes and cute hoorism. Social media has raised (or lowered) the dark arts of campaign interference to a highly sophisticated level. Before the era of mass communications, however, political parties intent on undermining a rival candidate had to resort to much cruder tactics. Byrne’s camp, who as they entered the election had estimated Sutherland’s chances at somewhere between nil and zero, became alarmed at the feedback they were getting from the doorsteps.

Locals were taken with the handsome young barrister with the silver tongue. When moreover, rumours began to circulate that Sutherland had a beautiful and exotic wife, the Byrne camp collectively decided that a more interventionist approach to their party rival would have to be taken.

Sutherland spent one evening knocking on doors around Cabra, to a generally positive response. Meanwhile a team of volunteers in the Byrne camp had reputedly found a Nigerian student from the Trinity medicine faculty. Asked to accompany them to the same houses that Sutherland had visited the previous evening, she was introduced as Mrs Sutherland. The consensus formed among Byrne’s volunteers was that in early 1970s Ireland, proof of an interracial marriage was enough to break any fledgling political career.

Prendergast insists that Byrne had no direct role in the underhand tactic. But whether he played an indirect role remains one of the great unanswered questions in Irish political life. According to Nicholas Kearns, Byrne and Sutherland ‘were made for each other. He [Sutherland] wouldn’t have minded that. He would have expected it.’