Haughey's Forty Years of Controversy (9 page)

By the time Gibbons left the stand on the fifth day of the trial, the prosecution's case was clearly in trouble.

In a special
Prime Time
programme on the arms trial in December 2001, RTÉ interviewed some of the jurors, who indicated that the admission by Gibbons that he had not objected when Kelly told him of the plans was vital testimony. ‘You could actually sense the reaction in the jury box because that was the turning point for the whole thing,' one of the jurors explained. ‘It was the critical moment.'

Gibbons was followed into the witness box by Col Michael Hefferon, who retired from the army just before the arms crisis, after almost eight years as director of military intelligence.

Hefferon's testimony was devastating. He established that Capt. Kelly had not acted independently but with the knowledge and approval of Hefferon himself. Moreover, he added that, as director of military intelligence, he had reported directly to the Minister for Defence on a regular basis and kept Gibbons fully briefed on Capt. Kelly's activities. Indeed he testified that he told Gibbons that the captain was going to Frankfurt in February 1970 to make inquiries about purchasing weapons.

‘From what Capt. Kelly said to you, who were these arms to be for?' Hefferon was asked.

‘They were to be for the Northern Defence Committees, in the event that a situation would arise where the government would agree to them going to them,' he explained. In order to keep the whole thing as secret as possible he said that he told Capt. Kelly to see Charlie about having the arms cleared through customs without inspection.

On retiring from the army Hefferon admitted he did not inform his successor about what had been happening. ‘I felt that the whole project of importing arms was one of very great secrecy in which some government ministers, to my mind acting for the government, were involved, and I felt that it should more properly be communicated to him by the Minister for Defence.'

‘Were you satisfied at that time that the Minister for Defence had full knowledge of the activities of Capt. Kelly?'

‘Yes,' Hefferon replied emphatically.

Hefferon's testimony caught the prosecution by surprise because there were no references in his statement in the
Book of Evidence
about having told Gibbons about Capt. Kelly's activities. Col Hefferon had actually given the gardaí a detailed eight-page statement explaining his own involvement and making it clear that Capt. Kelly was acting with the full knowledge and approval of the Minister for Defence.

Col Hefferon made some nineteen references to Gibbons in the course of his statement. However, most of those were deleted before the statement was entered into the book of evidence.

The following are some of the passages that were deleted from Col Hefferon's statement:

•   It is my opinion that Mr Gibbons knew that Capt. Kelly was involved in assisting the Defence Committee in the north to procure arms.

•   I told Mr Gibbons at the time about Capt. Kelly's involvement with the Defence Committee in the north regarding the procuring of arms and ammunition for their defence.

•   Around this particular time Capt. Kelly told him [Gibbons] that he might have to go to Germany again in connection with the arms and ammunition for the north and that a lot of snags had developed in connection with them.

•   I saw Mr Gibbons again in his office and I told him that Capt. Kelly intended travelling again to the continent in connection with their arms deal.

•   Mr Gibbons was prepared to take the necessary steps to have him (Capt. Kelly) relieved of duty in order that he could travel to the continent.

•   Capt. Kelly thought he would be required as duty officer at GHQ on the weekend he was going to the continent. I told Mr Gibbons that in the event of he not performing this duty I would have difficulty in explaining his absence, and if he was not relieved of that duty he would be subject to the normal army disciplinary action unless some authority were given to relieve him of the duty. Mr Gibbons was prepared to take the necessary step to have him relieved of duty in order that he could travel to the continent.

Nobody has ever explained why Hefferon's statement was doctored. Des O'Malley subsequently suggested that the evidence was deleted because it would not be admissible in court as it was just hearsay. However, much of the evidence was clearly admissible, because Hefferon gave it in court. His testimony was devastating as it essentially confirmed what Capt. Kelly would say later during the trial in his own defence. Even Conor Cruise O'Brien found the two army officers very credible witnesses. ‘No one in Dublin with whom I discussed the case – and I discussed it with many people of widely different views,' Cruise O'Brien wrote in his book,
States of Ireland,
‘had any hesitation in believing Capt. Kelly and Col Hefferon.'

‘As the trial went on,'
Private Eye
magazine noted, ‘it became clear that if Mr Haughey and his co-defendants were guilty of importing arms into Ireland, so was the entire Irish cabinet.'

The state's case was in shambles by the time Hefferon left the stand next day, but very shortly the whole proceedings were in disarray when the judge, Andreas O'Keefe, the president of the high court, declared a mistrial after being accused of conducting the proceedings in an unfair manner by one of the defence counsels. The latter withdrew the remark and apologised, but it was no good.

Charlie was understandably livid. ‘Resign from the Front Bench,' he shouted at the judge.

Outside the court afterwards a member of the jury told Capt. Kelly he ‘had the case won'. The various defence teams had not even begun to present their side, but the juror had already made up his own mind. ‘It was not a guilty verdict, even at this stage,' he explained.

There was a lot of speculation about O'Keefe's motives in declaring a mistrial. ‘Was it that having heard the critical evidence he did not want to have to direct the jury?' Kevin Boland later asked. Many people thought the judge was simply giving the state an opportunity to drop the case without having to suffer the indignity of losing it in open court.

A new trial began on 6 October 1970 with Mr Justice Seamus Henchy presiding. At the outset there was controversy over the status of Hefferon, when the prosecution indicated it would not be calling him as a witness. Counsels for the defendants naturally objected. They were anxious to cross-examine him, so they did not want to call him as their witness. The controversy was eventually resolved by the judge calling Hefferon as his witness so that the state and the defence could cross-examine him. The former director of military intelligence again turned out to be a very effective witness for the defence, as did Capt. Kelly when he elected to take the witness stand in his own defence.

At this point Charlie really did not need to testify at all, but he was anxious to play down his role in the affair. Capt. Kelly's testimony had hardened the evidence of Charlie's involvement, because he testified that he told the Minister for Finance about the plans to bring in guns, which were financed out of the money provided by the Department of Finance for relief of distress in Northern Ireland.

On the stand Charlie gave an added twist to his own defence. Like the others, he contended that what was being done was legal because it had the approval of the Minister for Defence, but he added that he did not actually know that a consignment of arms was involved. He said he authorised customs' clearance without knowing or, for that matter, caring about the actual nature of the cargo, which he assumed was something ‘needed by the army to fulfil the contingency plans' to help the people in Northern Ireland. It would have made no difference, he added, if he had been told that guns were involved.

‘If you had known that they were intended for possible ultimate distribution to civilians in the north would that have made any difference?' his counsel Niall McCarthy asked.

‘No, not really,' he replied, ‘provided, of course, that a government decision intervened. I would have regarded it as a very normal part of army preparations in pursuance of the contingency plans that they would provide themselves with, and store here on this side of the border, arms which might ultimately, if the government said so, be distributed to other persons.'

Charlie said he had no reason whatever to suspect Capt. Kelly. He had suggested making him a special customs officer to deal with pig-smuggling because he believed Gibbons was afraid the British might be on to the captain's activities.

‘My view of the situation was that Capt. Kelly was a very valuable intelligence officer,' Charlie explained. ‘I never heard any suggestion that he did not have Mr Gibbons complete confidence.'

While that seemed plausible enough, Charlie was not as convincing when he said he did not know the exact nature of the shipment. Fagan and Berry had testified that they each talked to Charlie on the telephone about the shipment. They knew it was an arms cargo and each assumed Charlie also knew, but neither actually said that arms were involved.

‘Did you ask Mr Fagan any questions as to what this consignment consisted of?' Charlie was asked.

‘No,' he replied. ‘We were speaking on the phone, and, as far as I can recollect, Mr Fagan told me he had already been in touch with Col Hefferon. I had no doubt in my mind that this was a consignment which was coming in as a result of the direction which we had given in pursuance of the contingency plans.'

‘Did you appreciate that it was arms and ammunition?'

‘No. I did not appreciate or know at that point of time, and, even when I spoke to Mr Berry, the words “arms and ammunition” were never used.'

In dealing with his telephone conversation of 18 April with Berry, Charlie tried to give the impression of having a very vivid memory of the discussion. For instance, Berry said that he had answered the telephone himself, whereas Charlie contended that a child answered it first.

To remember a small point like that, which had absolutely no bearing on the subsequent conversation, would indicate a clear recollection of the call. But Berry was later adamant on this point. He had been in the sauna when the telephone began to ring and he hoped somebody else would answer it. When nobody did, he answered it himself in the nude.

Charlie said that Berry had omitted a number of things in his account of the call. For instance, he said that Berry had asked at the outset if Charlie had a scrambler and he mentioned that the consignment weighed ‘seven or eight tons'. Berry also said that ‘it was the most stupidly handled affair he had ever known in his civil service days'. None of those points were important except that, if true, they would indicate that, even without contemporary notes, Charlie had a better recollection of the conversation than Berry. All this was important because Charlie was categorically contradicting Berry's testimony on two vital points. Firstly, he was contending he had never said anything about guaranteeing that the arms would be sent directly to the north, and secondly, he stated Berry had missed his concluding words. Having said ‘it had better be called off', Charlie stated that he added: ‘what ever it is'.

He said he called off the shipment in order to avoid bad publicity. ‘It was made clear to me,' he explained, ‘that the special branch wished this cargo to come, and wished to seize it. I was quite certain in my mind that evening that something had gone wrong, and that army intelligence was clearly at cross-purposes with the special branch, and there was a grave danger of an unfortunate incident occurring at Dublin airport with, as I said, all the attendant publicity.' Yet throughout all this he said that he still did not know that a cargo of arms was actually involved.

Charlie said he did not ask Berry because they were speaking on an unsecured telephone line without a scrambler. Such confusion was understandable under the circumstances, but this would not explain why Charlie did not ask Gibbons what the whole thing was about when they met privately afterwards.

‘Do you tell us that a conversation took place with your colleague the Minister for Defence, in the privacy of your office – with nobody else present – and you decided between you to call off the importation of a certain consignment, and that that conversation began and ended without you knowing what the consignment was?' Charlie was asked.

‘Yes,' he replied. ‘Nor did he mention what the consignment was.'

‘Did you not ask him what it was?'

‘No. It did not arise. In my mind was present the fact that this was a consignment being brought in by army intelligence in pursuance of their own operations.'

‘As a matter of simple curiosity, were you not interested at that stage in finding out what the cargo was that all the hullabaloo was about?'

‘No,' Charlie replied. ‘The important thing was that the army and special branch were at cross-purposes, and that it had better be stopped. I don't rule out the possibility that it could well have been in my mind that it could have been arms and ammunition – but it could have been a lot of other things.'

‘If your evidence is correct,' the prosecutor said, ‘I suggest that when Mr Gibbons came to see you on Monday your reaction would have been, “I have already called this off for you but now, please, tell me what it's all about?”'

‘That's not what happened,' Charlie maintained. ‘It may be what you think should have happened – but it did not happen.'

In his opening address the prosecutor had stated ‘that Mr Haughey's involvement – while of a lesser degree, because he was only there briefly – was of a vital nature because it was he who had given directions to Mr Fagan that this consignment was to be cleared without customs examination.' In his closing statement Charlie's counsel contended that the defendant had merely facilitated a legitimate request from army intelligence, seeing that it was actually Col Hefferon who suggested that Capt. Kelly should approach Charlie in the matter in the first place.